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[2016] ZAGPPHC 605
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Otto v S (A858/2014) [2016] ZAGPPHC 605 (19 April 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEAL
NO: A858/2014
DATE:
19 APRIL 2016
In
the matter between:
GERHARDUS
PIETER
OTTO
...............................................................................................
Appellant
A
nd
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
PETERSEN
AJ:
[1]
This appeal is
twofold
:
(1)
an appeal by the appellant against
conviction on a charge of Rape in contravention of section 3 of the
Criminal Law(Sexual Offences
and Related Matters) Amendment Act, Act
32 of 2007, with leave of Jordaan J and Strauss AJ, in terms of
section 309C of the Criminal
Procedure Act, Act 51 of 1977; and (2)
an appeal by the respondent against sentence, with leave of Bam J, in
terms of section 31OA
of Act 51 of 1977.
[2]
The appellant, a 45 year old man is
alleged to have sexually penetrated the complainant, a 15 year old
girl by inserting his penis
into her v
agina on 23 July 2011 at
[B……]
in the regional division of
Gauteng. He pleaded not guilty to the charge, tendered a plea
explanation in terms of section 115 of
Act 51 of 1977 and made
admissions in terms of section 220 of Act 51 of 1977. The explanation
of plea in brief is that the appellan
t owns a townhouse in
[H…….]-[G…….]
, with
two bedrooms, a lounge and an open plan dining room and kitchen. On
23 July 2011, the complainant, her brother and parents
visited the
appellant and his family. The appellant, his wife and the
complainants’ parents dined out that evening, returned
at
around 23h00pm and he retired for the night in his bedroom. He
occupied the one bedroom with his wife, whilst the complainants’
parents and her younger brother occupied the second bedroom. His two
sons aged 19 years and 16 years slept in the open plan area,
as did
the complainant. The following morning he found nothing amiss,
nothing was said and there was no adverse behavior on the
part of the
complainant. On the contrary she had hugged him, kissed him, bade him
farewell and left with her family. One month
later he was arrested.
The appellant admits that the complainant, who was 15 years old at
the time, wa
s present at his home at [3 M….. A…...
B……, G…..]
on 23 July
2011.
[3]
The State relied on the oral evidence of
four (4) witnesses; and documentary evidence in the form of a J88
medical report. The appellant
elected not to testify in his defence
and closed his case.
[4]
The complainant testified without the
assistance of an intermediary. An application by the state in terms
of section 170A of Act
51 of 1977 was dismissed by the learned acting
regional magistrate. He found that the facts placed before him by the
state was
insufficient to find that the complainant would be
subjected to undue, emotional stress and suffering, if she had to
testify in
the ordinary course. The court had, however, without
application, remarked that the child was a minor and that the
proceedings
were in camera.
[5]
The complainant who had been admonished
by the learned acting regional magistrate testified that on 23 July
2011 at around 23h00pm
she was lying on a couch with her younger
brother when her parents went to sleep. The appellant and his wife
remained awake for
a while watching television. Later his wife
retired to the bedroom and he remained. She felt something on her
upper body not knowing
what it was and did not open her eyes to look.
The sensation she felt stopped, returned and upon opening her eyes
she saw the appellant.
In her evidence in chief she testified that
she could not recall what happened physically but for a few aspects.
The appellant
kissed her, she kept her mouth closed and said no. He
left for the bathroom and she turned to face the backrest of the
couch.
[6]
The appellant returned and told her to
face him. She initially refused to do so. However, upon turning her
head to look at him,
he placed his penis in her face. He instructed
her to sit on the couch. She sat on the left side of the couch whilst
he sat next
to her. He told her to suck his penis, she initially
declined, but thought that he would leave her be, if she but only
once played
along. She sucked his penis and chocked on it when he
inserted it too deep into her mouth. She stood up and he led her to
the kitchen.
[7]
The appellant pulled down her pants and
placed her on a kitchen counter top. He inserted his penis, as would
appear from the cross
examination for the first time, into her
vagina, moving to and fro. She climbed off the kitchen counter top
and he pushed her against
it so as to make her lay on it. He inserted
his penis from behind into her anus and it was very painful. At this
point of her evidence
she took time to ponder on what happened
further, in her words loosely translated
“
I
am now trying to remember”
and then testified that it all was over. She saw blood on the floor
which the appellant wiped away with a cloth.
[8]
They returned to the lounge where the
appellant instructed her not to tell anybody or he would go to jail.
He requested her cellular
phone number which she gave to him. At
around 03h00am they went to sleep. The next morning after spending
about an hour at the
appellant’s home she left for home with
her family. The appellant communicated with her thereafter via SMS
and telephonically.
The communication stopped when her cellphone was
stolen.
[9]
On Wednesday 27 July 2011 she visited
her grandmother and felt the need to disclose to her what had
happened. She then in fact disclosed
to her grandmother what had
happened and requested her not to tell anyone.
[10]
The complainant’s grandmother
testified that the complainant had visited her on 27 July 2011 at
around 16h00pm. As the complainant
sat at the table doing her
homework she could see that she was very anxious. Eventually she told
her that she needed to tell her
something as something big had
happened. Upon enquiring what had happened she initially did not want
to talk about it but after
some prodding, she said her uncle had
raped her. She was asked what had happened and explained that she was
lying on a couch, seemingly
with her back to the couch, when her
uncle came to her and bothered her. He then touched her on parts he
was not supposed to. He
took out his private part and showed it to
her. She turned her back on him and told him to leave. He continued
touching her, she
tried to stand up but he instead pushed her to the
kitchen where it happened. The complainant asked her not to tell
anyone because
she was scared of her nephews. She told the
complainant that she had no choice but to tell what happened. She
phoned her daughter
and reported what she was told. Her daughter in
turn contacted the complainants’ parents. Her other daughter
took the complainant
to the police station and to the Doctor.
[11]
The complainant’s father testified
that when they returned from dinner on the 23 July 2011, he retired
to the bedroom with
his wife, whilst the appellant and his wife sat
on one couch watching television; and his daughter slept on another
couch. The
appellant’s two sons were sleeping on a mattress in
an open area next to the lounge which is separated from the lounge by
a curtain. He had observed something was amiss with his daughter on
the morning of 24 July 2011. She was particularly quiet and
did not
appear to be herself.
[12]
Doctor Ferras Martinez a medical
practitioner at Laudium Clinic testified that he examined the
complainant on 01 August 2011 at
around 17h45. Upon examination he
noted that the complainant had no previous history of sexual
intercourse, that the first date
of her last menstruation cycle was
21 July 2011 and that it had lasted 5 days. The vaginal examination
showed that the hymen was
annular and swollen and there was a tear at
position 9. His conclusion was that there had been penetration
possibly by an erect
penis which penetration extended past the
labia
majora.
The anal examination
revealed a fissure at position 12. He noted that there was no
reported history of constipation.
[13]
Under cross examination the complainant
was confronted with her statement made to the police, the evidence in
statements deposed
to by her grandmother and father; and the medical
evidence. As a result, the appellant submits that the following
evidence constitutes
material
contradictions:
[13.1]
The complainant testified in chief that
she was awake when she felt her upper body being touched, whilst in
cross examination testifying
that she was also touched between her
legs. In her statement to the police she stated
“
and
then I fell asleep on the sofa and then while I was sleeping I felt
someone touching my breast.”
According to her father she reported to him that the appellant had
sucked her breasts.
[13.2]
The complainant testified in chief that
she was pushed to the kitchen by the appellant, whilst in her
statement to the police she
stated
“
I
then stood and he kissed me again and pulled me to the kitchen.”
The complainant testified that she was picked up by the appellant
from the table and placed on the ground whilst in her statement
to
the police she said “...
I
climbed off from the desk."
[13.3]
The complainant testified that she was
made to lay on a desk at least 90mm high and that the appellant
penetrated her while standing
barefoot on the ground, a feat it is
submitted is not possible. The learned acting regional magistrate
despite placing on record
that the table would be measured never had
it done.
[13.4]
The complainant testified in chief that
she permanently suffered from constipation. The doctor testified that
an anal fissure takes
very long to heal and had queried whether the
injury was penetration related and somehow found that there was no
history of constipation.
[14]
The appellant submits that the following
evidence constitutes
improbabilities
in the evidence of the complainant:
[14.1]
During cross examination the complainant
was given ample opportunity to explain exactly how she was dressed.
She could not relate
that she was, at the time of the incident, in
the second day of her menstrual cycle and had to be reminded in cross
examination.
The question begged is how the complainant could not
remember this. The submission goes that if she was raped whilst in
the second
day of her menstrual cycle with blood left on the floor
after the rape that she gets dressed and lays behind the appellant on
the
couch smoking a cigarette, smoking which she does not want her
parents to know about. It is submitted that one would have expected
her to go to the bathroom to wash the blood from her legs before
engaging in the relaxing act of smoking.
[14.2]
That
the behavior of the complainant after the alleged rape of voluntarily
spending further time alone with the appellant by laying
at his back
watching television and smoking a cigarette raises a host of
questions which tends to cast serious doubt on the probability
of the
rape allegation. S v Ncube
[1]
is relied upon.
“
[19]
This then leads to the inescapable conclusion that after the alleged
rape the complainant voluntarily remained alone in the
appellant’s
company for a considerable period of time. This conduct, in my
opinion, raises a host of questions which tend
to throw serious doubt
on the probability of the rape allegation. ”
[14.3]
The complainant alleged that she was
anally penetrated, whilst the doctor queried if the anal injury was
related to penetration.
The submission is that the doctor’s
evidence does not support the complainant’s version.
[14.4]
It is highly improbable that the
appellant’s sons, with the television’s light against the
wall, in the same open area,
would not have heard the complainant
stifling her talking and subsequently being raped.
[14.5]
There is no reasonable explanation for
the complainant’s failure to report the incident to her
parents, aunt or nephews at
the first reasonable opportunity after
she had been raped, considering that she had not been threatened
should she report the incident.
[14.6]
The complainant’s grandmother
testified that she was requested not to tell anyone about the rape as
she was scared of her
nephews who were present at the time. The
complainant did not testify about being scared of her nephews. It is
submitted that this
is indicative that she probably feared her
nephews knowledge that no rape occurred.
[14.7]
The complainant’s grandmother testified that her daughter is a
pharmacist and that the pharmacist had requested on
the Wednesday
that “they look at the complainant for AIDS and “daardie
goetertjies”. The state failed to call
the pharmacist who
requested that the checks and other things be conducted on the
complainant, to explain exactly what the checks
involved and if those
tests could have caused the injuries. The complainant only saw the
doctor 5 days after these checks/tests,
which accords with the
doctor’s evidence that the injuries were 5 days old.
[15]
Before
proceeding to a consideration of the issues, it is opportune to deal
with the manner in which the prosecution was dealt with.
In S v
Mponda
[2]
the learned judge noted grave concerns about the formulation of
charge sheets. He remarked,
inter
alia,
as follows: “It is most unsatisfactory that too frequent
sufficient care is not paid to the appropriate formulation of the
charge sheet, especially in serious cases where the potential
sentence faced by the accused person can be of the highest severity,
particularly where a multiplicity of counts is involved.” “The
slovenly formulation of the charge sheet is potentially
prejudicial
not only to the accused, but also to the administration of justice.”
“An inadequately formulated charge
sheet may well, by its
failure to inform him or her of the charge with sufficient detail to
answer it, infringe an accused person’s
basic constitutional
right to a fair trial.” “The prejudice to an accused
person in the circumstances described is
illustrated by the
magistrate’s remarks during sentencing from which it is
apparent that notwithstanding the content of the
charge sheet the
appellant was treated for sentencing purposes as having recurrently
raped the complainant. This was a material
misdirection.” “The
administration of justice is potentially prejudiced because the
allegation of only a single count
of rape in the charge sheet, where
the evidence supports a multiplicity of counts, means that the
properly convicted accused can
be sentenced only as a single count
offender. As mentioned this is cause for particular concern in
matters where the legislature
has determined that offenders convicted
of multiple counts should receive prescribed higher minimum
sentences. It is liable to
obstruct the achievement of legislative
objects in the fight against crime and to bring the criminal justice
system into public
disrepute” “A Charge sheet must set
forth the relevant offence in such a manner and with such particulars
as to the
time and place at which the offence is alleged to have been
committed as may reasonably sufficient to inform the accused of the
nature of the charge.” Nugent JA was more succinct in S v
Vilakazi
[3]
:
“
The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and many
prosecutions fail
for that reason alone. In those circumstances each detail can be
vitally important...’’
In this matter, the pro forma charge sheet, the drafting of the
charge by the prosecutor and the cursory manner in which the evidence
was led demonstrates the concerns raised by Nugent JA. The charge
refers to section 281 of Act 51 of 1977 which is not applicable
to
the charge of rape and appears rather to be a reference to the
competent verdicts to Rape in section 261 of Act 51 of 1977.
Section
52 of Act 105 of 1997 was repealed by section 2 of Act 38 of 2007.
[4]
If the prosecutor had carefully prepared for the matter, the evidence
of the complainant that she had been made to suck the penis
of the
appellant, that her breasts or upper body had been touched and that
she had been kissed by the appellant should have been
reflected in
the charge and/or additional charges in contravention of Act 32 of
2007 should have been proffered against the appellant.
The evidence
in chief of the complainant extends over 4 and half pages. Many of
the issues were traversed only in cross examination.
This appeal
accordingly calls for “accurate understanding and careful
analysis of the evidence.
[16]
The
appellant did not testify in his defence; his version as put to the
complainant was tantamount to a bare denial and untested.
No reliance
can be placed on it insofar as it differs from the evidence of the
complainant on the issues in dispute. The state’s
evidence is
the only evidence to be considered against the onus of proof, beyond
a reasonable doubt, which rests on the state.
In S v Boesak
[5]
Langa DP, said:
“293E-F:
The fact that an accused person is under no obligation to testify
does not mean that there are no consequences attaching
to the
decision to remain silent during the trial. If there is evidence
calling for an answer, and an accused person chooses to
remain silent
in the face of such evidence, a court may well be entitled to
conclude that the evidence is sufficient in the absence
of an
explanation to prove the guilt of the accused. Whether such a
conclusion will be justified will depend on the weight of the
evidence.
[17]
The state had to prove beyond a
reasonable doubt that the appellant raped the complainant. The
complainant’s evidence called
for a dual approach; a cautionary
approach as a single witness to the alleged rape with reference to
section 208 of Act 51 of 1977;
and on the basis of the cautionary
rule applicable to the evidence of a child.
[18]
Cautionary
rules are rules of practice (so called judge-made rules) calling on
the adjudicator of fact to warn himself to be cautious
when
evaluating evidence which experience has shown to require
circumspection. S v M
[6]
.
They are no more than guidelines in the evaluation of evidence. In S
v J
1966 (1) SA 88
(LA) 89F-H and S v Snyman
1968 (2) SA 582
(A) 585H
the Court remarked that: “... the exercise of caution should
not be allowed to displace the exercise of common sense”.
On
the approach to the evidence of a single witness, the dictum of De
Villiers JP in R v Mokoena
[7]
,
often misconstrued, is often relied upon. The dictum has its origins
in the following passage: “Now the uncorroborated evidence
of a
single competent and credible witness is no doubt declared to be
sufficient for a conviction by [the section], but in my opinion
that
section should only be relied on where
the
evidence of a single witness is clear and satisfactory in every
material respect(
my
emphasis). Thus the section ought not to be invoked where, for
instance, the witness has an interest or bias adverse to the accused,
where he has made a previous inconsistent statement, where he
contradicts himself in the witness box, where he has been found
guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation, etc.”
[19]
A
historical overview of the dictum highlights that a common sense
approach to the dictum is called for. In R v Nhlapo
[8]
the court placed the dictum in context, adding what De Villiers JP
said at 17: “it does not mean . . . that an appeal must
succeed
if any criticism, however slender, of the witness' evidence were
well-founded”. Broome JP was critical of the dictum
“as a
proposition of law” in R v Abdoorham
[9]
,
finding it “entirely unhelpful”. He accepted that a court
“may be satisfied that a witness is speaking the truth
notwithstanding that he is in some respects an unsatisfactory
witness”. Macdonald AJP in R v J
[10]
held the view that the cautionary rules are “no more than
guides, albeit very valuable guides, which assist the court in
deciding whether the Crown has discharged the onus resting upon it”,
adding that “the exercise of caution should not
be allowed to
displace the exercise of common sense” and once a judicial
officer has anxiously scrutinised the evidence of
a single witness he
should not be “swayed by fanciful and unrealistic fears”.
In S v Webber
[11]
,
Rumpff JA at 758G-H: “dis natuurlik onmoontlik om 'n formule te
skep waarvolgens elke enkele getuie se geloofwaardigheid
vasgestel
kan word, maar dit is noodsaaklik om met versigtigheid die getuienis
van 'n enkele getuie te benader en om die goeie
eienskappe van so 'n
getuie te oorweeg tesame met al die faktore wat aan die
geloofwaardigheid van die getuie kan afdoen.”
In S v
Teixeira
[12]
the court stressed that, in evaluating the evidence of a single
witness, “a final evaluation can rarely, if ever, be made
without considering whether such evidence is consistent with the
probabilities”. On the cautionary rule applicable to the
evidence of children it was said in R v Manda
[13]
:
“The dangers inherent in reliance upon the uncorroborated
evidence of a young child must not be underrated. The imaginativeness
and suggestibility of children are only two of a number of elements
that require their evidence to be scrutinised with care amounting,
perhaps, to suspicion. It seems to me that the proper approach to a
consideration of their evidence is to follow the lines adopted
in the
case of accomplices. . . . The trial court must fully appreciate the
dangers inherent in the acceptance of such evidence
and where there
is reason to suppose that such appreciation was absent a court of
appeal may hold that the conviction should not
be sustained. The best
indication that there was proper appreciation of the risks is
naturally to be found in the reasons furnished
by the trial Court.”
The complainant was a child mere months shy of her 16
th
birthday. On sentence it is submitted that this factor be considered
when considering deviating from the mandated sentence of life
imprisonment, which would have been downgraded to 10 years
imprisonment if she was 16 years old. On the same token the argument
may then be that the cautionary approach to her evidence as her child
should be approached only on the footing as a single witness,
nothing
more and nothing less.
[20]
The contradictions inherent in the
evidence in chief of the complainant against the statement made to
the police are inescapable.
It is likewise clear that the report made
by the complainant to the first report, her grandmother and the
version given to her
father lacks consistency. The weight to attach
to those contradictions and inconsistencies, in the totality of the
evidence, bears
careful scrutiny. The learned regional magistrate
gave a detailed comprehensive judgment dealing with his views on
these issues,
preferring to accept that they were not so material to
affect the credibility of the complainant.
[21]
The inconsistencies and contradictions
logically raise questions any reasonable person would beg. The most
obvious being why the
complainant, if the sexual intercourse was
non-consensual would in a modest two bedroomed townhouse where her
cousins were lying
within earshot of the couch where she lay and the
kitchen; and where her parents and aunt occupied bedrooms not far
from the lounge,
not scream out for help at any stage of the various
acts of penetration and sexual assault. The complainant’s
proffers an
explanation for this; if she had screamed she would have
been heard, but she chose to remain silent because she knew what her
father
would do: “My pa sal hom geslaan het en goeters dan sou
my pa opgeeindig het in die tronk want ek weet my pa kan baie kwaad
raak en goed en hy kan optroppelis raak” See page 29 lines
17-22. In the face of the authority over her by her uncle, she
was
concerned about the consequences which could flow for her father.
[22]
When the sexual intercourse in the
kitchen was complete, the complainant returned to the lounge where
she was laying on the couch
smoking with the appellant and remaining
awake until around 3am. Whilst lying at the appellant’s back or
any stage preceding
that, he did not threaten the complainant or her
family with death or harm if she spoke out, but played on her
emotions that he
would go to prison. He later reinforced this by
making telephonic contact with her. He abused her trust. The
complainant’s
evidence on the rape at first glance appears
improbable. The matter, however, does not end there. The
complainant’s evidence
on the sequence of events from the
kissing, the sucking of the appellant’s penis, the vaginal and
anal penetration, the smoking
of cigarettes whilst lying on a couch
with the
[23]
Her uncontested evidence on the sexual
penetration must be seen against the backdrop of the attack on the
medical evidence. The
attack is premised predominantly on the anal
fissure and the evidence of the complainant that she suffered from
chronic constipation
as a child, whilst the doctor noted no such
history in the J88. The complainant’s evidence carefully
considered does not
attest to the chronic constipation being a
condition existent at the time of the alleged rape. Nothing material
turns on his noting
no history of chronic constipation in light of
the complainant’s evidence. Whilst latching onto this aspect of
the medical
evidence, the swelling of the hymen and the fresh tear at
position 9 of the vagina which the doctor found to be consistent with
penetration by penis past the
labia
majora
is hypothesized on the
failure to call the pharmacist who proposed a certain course of
action be taken. One cannot embark speculative
hypothesis on what may
have happened on the course of action may have proposed. The
uncontroverted evidence is that the complainant
had been examined
only by the doctor - the only course of action on record. The
doctor’s findings are consistent with the
evidence of the
complainant that she had been vaginally and anally penetrated.
[24]
Whilst
the appellant did not testify, it is evident from the cross
examination that he disputed sexual intercourse with the complainant.
In S v York
[14]
the court stated: “It is always, of course, for the prosecution
to prove the absence of consent. This entails that even if
the
defence, as here, is that no intercourse took place, the court must,
in the adjudicative process, be alive to the possibility
that there
might have been consent nonetheless. What requires emphasis, though,
is that without an evidential basis such a possibility
would be no
more than speculative and one would be free to disregard it in coming
to one's eventual conclusion. And it need hardly
be said that an
accused's failure to allege consent will be weighed in the scales
when considering whether the postulated possibility
is reasonable or
not”. Nugent AJA confirmed this principle in S v Vilakazi supra
at [47] as follows: “Once having rejected
the evidence of the
appellant the magistrate appears to have considered that to be the
end of the matter and did not pertinently
direct his mind to whether
all the elements of the offence had been established...In the case of
rape those elements include both
absence of consent and knowledge by
the accused of the absence of consent (or at least knowledge of that
possibility.) As Howie
P said in S
v
York
in relation to the absence of consent: “It is always, of
course, for the prosecution to prove the absence of consent. This
entails that even if the defence, as here, is that no intercourse
took place, the court must, in the adjudicative process, be alive
to
the possibility that there might have been consent nonetheless. That
applies as much to the presence of
mens
rea
and this court said as much in S v S. In that case the accused denied
that sexual intercourse had occurred, in circumstances in
which an
admission to that effect would have exposed him to conviction under
the Immorality Act. After finding that sexual intercourse
had indeed
occurred the court said the following (my translation): “However,
this finding is not by itself sufficient to
bring home a conviction
of rape. Although the appellant had sexual intercourse with the
complainant without her consent and against
her will he is not guilty
of rape if he
bona
fide
believed that she consented. In the present case the appellant does
not allege that he believed that the complainant consented
to
intercourse and he could not allege that, given his denial that he
had intercourse with her. That does not relieve the State
however of
the obligation to prove
mens
rea,
although the appellant's false denial that intercourse occurred makes
the State's task in that regard considerably easier.”
[25]
In light of the evidence of the
complainant with the contradictions and inconsistencies inherent
therein and the fact that sexual
intercourse was disputed, this court
is enjoined to consider the issue of consent insofar as the elements
of the crime of rape
is concerned.
[26]
The central question, in my view, is did
the complainant consent to the sexual intercourse which may render
the appellant liable
to a conviction under the competent verdict of
“statutory rape” rather than rape. Counsel for the
appellant conceded
that the appellant may be liable to a conviction
on the competent verdict. A careful conspectus of the totality of the
complainant’s
evidence on the question of consent demonstrates
the following:
[26.1]
When the appellant kissed the
complainant the first time she refused and said no. At page 23 lines
14-16 she says “okay, en
toe het hy my ewe skielik begin soen,
maar ek het my mond toegehou,
ek
het geweiere
n
ek
het gese nee
”(my emphasis).
The appellant left for the bathroom and the complainant turned her
back to the television.
[26.2]
The appellant returned from the bathroom
and told the complainant to look at him. She initially said no. At
page 23 lines 24 she
says “Ehm, en toe het hy, toe kom hy
terug, toe se hy vir my ek moet hiernatoe kyk. Toe se ek vir horn,
nee, ek wil nie.”
[26.3]
The complainant eventually turned her
head and was confronted by the appellant’s penis in her face.
He told her to sit next
to him and did not ask her to suck his penis,
but told her, in other words instructed her, to suck his penis. She
initially said
no but then thought he would leave her be if she but
on that one occasion played along. At page 24 lines 5-6 she says “En
toe het ek vir die eerste keer nee gese. Toe dink ek maar net vir ‘n
slag as ek net saamspeel sal hy my dalk uitlos.”
Under cross
examination the complainant likened what the appellant asked her to
do to having been somewhat forced. At page 35 lines
20-25 she says in
response to a question on force: “Maarjy se “vra”,
want hoekom ekjou vra, die, hey het jou
nie geforseer of, of geslaan
of seergemaak of...hy het nou vir jou gevra? - Nee, hy want dit is
waar ek gedink het, okay, ek, ek
moet net saamspeel da thy my net kan
uitlos, maar hy,
hy
het my soort van geforseer,
maar
gev..maar net vra, hy het nie soos my seergemaak or nader getrek of
iets nie.”
[26.4]
When the complainant chocked on the
appellant’s penis she stood up, he stood behind her and pushed
her to the kitchen. She
clarified the contradiction in her statement
to the police maintaining that she had been pushed.
[26.5]
When the appellant placed the
complainant on the kitchen counter top(kombuis rak) he inserted his
penis in her vagina(privaatheid)
and moved to and fro. She felt pain
and the appellant helped off the counter top. She clarified her
statement to the police that
she did not climb off the counter
herself.
[27]
Section 1(3) of Act 32 of 2007 has
codified the common law principles applicable to consent and defines
the words “voluntary
or un-coerced” as: “(3)
Circumstances ... in respect of which a person (“B”) (the
complainant) does not
voluntarily or without coercion agree to an act
of sexual penetration . . . include, but are not limited to, the
following: (
b
)
where there is an abuse of power or authority by A to the extent that
B is inhibited from indicating his or her unwillingness
or resistance
to the sexual act, or unwillingness to participate in such a sexual
act,”
A
“sexual act” is defined in section 1(1) as including an
act of sexual penetration or sexual violation, and the word
“complainant” is defined as “the alleged victim of
a sexual offence”.
Snyman:
Criminal
Law
(6th ed) at page 352 opines
“If Y (the complainant or victim) had offered physical
resistance. or loudly proclaimed his or
her opposition (or both) to
the proposed intercourse, there is, of course, no problem in holding
that the act of sexual penetration
took place without consent.
It
is, however, wrong to assume that a court may find that the act took
place without Y’s consent only if he or she had offered
actual
physical resistance or had expressly stated or shouted his or her
opposition to the act
(my
emphasis). Just as Y’s consent to the act may be signified
either expressly or tacitly (by implication), her refusal to
consent
may, likewise, be signified either expressly or tacitly.”
Section 1(2) and (3)
of
Act 32 of 2007 as Snyman summarises it provides: “For consent
to succeed as a defence, it must have been given consciously
and
voluntarily, either expressly or tacitly, by a person who has the
mental ability to understand what he or she is consenting
to, and the
consent must be based on a true knowledge of the material facts
relating to the intercourse” Burchell :
Principles
of Criminal Law
(3rd ed) says
“South African practice...widened the offence, the essence of
which is now that intercourse should have occurred
without consent,
whether the lack of consent was due to force or fear or fraud or
incapacity to consent.
On
this approach the fact that the woman did not physically resist and
passively submitted to intercourse is not directly relevant,
the
central question being whether it was in fact her present and freely
made decision there and then to engage in sexual intercourse.
Consent
deprives the penetration of a criminal character. To have this effect
the consent must have been (a) real and (b) have
been given before
the penetration occurred.
[28]
The
legal principles applied to the complainant’s evidence on
consent as highlighted
supra,
demonstrates that the consent by the complainant was neither real,
given voluntarily nor demonstrated tacitly. The appellant
irrespective
of denying intercourse could not have reasonably
believed that the complainant had consented to the kissing, the
sucking of his
penis or the vaginal or anal penetration, all acts
which on their own constitute either sexual penetration or sexual
violation.
[15]
In that regard he acted both unlawfully and had the requisite
mens
rea
to rape the complainant.
[29]
In the premise, the appeal against
conviction on a charge of rape in contravention of section 3 of Act
32 of 2007 stands to be dismissed.
THE
APPROACH TO THE APPEAL AGAINST SENTENCE BY THE STATE
[30]
The
approach to an appeal against sentence was reiterated in the
locus
classicus
of S v Malgas
[16]
where the Court said: “The mental process in which courts
engage when considering questions of sentence depends upon the
task
at hand. Subject of course to any limitations imposed by legislation
or binding judicial precedent, a trial court will consider
the
particular circumstances of the case in the light of the well-known
triad of factors relevant to sentence and impose what it
considers to
be a just and appropriate sentence. A court exercising appellate
jurisdiction cannot, in the absence of material misdirection
by the
trial court, approach the question of sentence as if it were the
trial court and then substitute the sentence arrived at
by it simply
because it prefers it. To do so would be to usurp the sentencing
discretion of the trial court. Where material misdirection
by the
trial court vitiates its exercise of that discretion, an appellate
Court is of course entitled to consider the question
of sentence
afresh. In doing so, it assesses sentence as if it were a court of
first instance and the sentence imposed by the trial
court has no
relevance. As it is said, an appellate Court is at large...”.
[31]
It
was conceded at petition that the learned regional magistrate
misdirected himself on sentence. Counsel for the appellant during
argument, however, submitted that the appellant had not been apprised
of the applicability of the mandated sentence of life imprisonment.
The issue taken is that the learned acting regional magistrate had
not explained the minimum sentence of life imprisonment to the
appellant and that his attorney’s submissions to the learned
acting regional magistrate did not suffice. The submission is
made
with reliance on the decision of S v Ndlovu
[17]
.
A careful reading of Ndlovu on this point call for a reading of
paragraph [11 ] and paragraph [12]:
“
[11]
Whilst it is desirable that the charge-sheet should set out the facts
the State intends to prove in order to bring an accused
within an
enhanced sentencing jurisdiction, to do so is not essential.
R
v Zonele and Others
1959 (3) SA
319
(A) at 323A - H; S
v
Moloi
1969 (4) SA 421
(A) at 424A
- C. But in a recent judgment of this Court Cameron JA reminds us
that an accused person has a constitutionally guaranteed
right to a
fair trial that embraces a concept of substantive fairness. He said
the following: 'The Constitutional Court has emphasised
that under
the new constitutional dispensation, the criterion for a just
criminal trial is "a concept of substantive fairness
which is
not to be equated with what might have passed muster in our criminal
courts before the Constitution of the Republic of
South Africa Act
108 of 1996 came into force".
(S
v Zuma and Others
[1995] ZACC 1
;
1995 (1) SACR
568
(CC)
(1995 (2) SA 642
;
1995 (4) BCLR 401)
in para [16], drawing a
contrast with S
v
Rudman and Another, S v Mthwana
1992 (1) SA 343
(A) at 377; and see
Sanderson
v Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998 (1) SACR 227
(CC)
(1998 (2) SA 38
;
1997 (12) BCLR 1675)
in para
[22],
per
Kriegler J.) The Bill of Rights
specifies that every accused has a right to a fair trial. This right,
the Constitutional Court has
said (in S
v
Zuma and Others
[1995] ZACC 1
;
1995 (1) SACR 568
(CC)
(1995 (2)
SA
642
;
1995 (4) BCLR 401)
in para [16]), is broader than the specific
rights set out in the subsections of the Bill of Rights' criminal
trial provision (Constitution,
s 35(3)(aJ -
(o)).
One
of those specific rights is "to be informed of the charge with
sufficient detail to answer it" (Constitution, s 35(3)(aJ).
What
the ability to "answer" a charge encompasses this case does
not require us to determine. But under the constitutional
dispensation it can certainly be no less desirable than under the
common law that the facts the State intends to prove to increase
sentencing jurisdiction under (the Act) should be clearly set out in
the charge- sheet.'
(Michael Legoa v
The State,
case No 33/2002, judgment delivered on 26 September
2002,* in para [20].) Cameron JA declined, however, to lay down a
general rule
that the charge-sheet must in every case recite either
the specific form of the scheduled offence (in that case dealing in
dagga
with a value of more than R50 000) with which an accused is
charged, or the facts the State intends to prove to establish it. He
held, in the end, that: 'Whether the accused's substantive fair trial
right, including his ability to answer the charge, has been
impaired,
will depend on a vigilant examination of the relevant circumstances'
(in para [21]).
[12]
The following extract from the judgment
of the Full Court in S
v
Seleke en Andere
1976 (1) SA 675
(T) at 682H was quoted with approval by Cameron JA (his translation
from Afrikaans): 'To ensure a fair trial it is advisable and
desirable, highly desirable in the case of an undefended accused,
that the charge-sheet should refer to the penalty provision.
In this
way it is ensured that the accused is informed at the outset of the
trial, not only of the charge against him, but also
of the State's
intention at conviction and after compliance with specified
requirements to ask that the minimum sentence in question
at least be
imposed.
1
The enquiry, therefore, is whether, on a vigilant examination of the
relevant circumstances, it can be said that an accused had
had a fair
trial. And I think it is implicit in these observations that where
the State intends to rely upon the sentencing regime
created by the
Act a fair trial will generally demand that its intention pertinently
be brought to the attention of the accused
at the outset of the
trial, if not in the charge-sheet then in some other form, so that
the accused is placed in a position to
appreciate properly in good
time the charge that he faces as well as its possible consequences.
Whether, or in what circumstances,
it might suffice if it is brought
to the attention of the accused only during the course of the trial
is not necessary to decide
in the present case. It is sufficient to
say that what will at least be required is that the accused be given
sufficient notice
of the State's intention to enable him to conduct
his defence properly.”
[32]
In Legoa Cameron JA “declined to
lay down a general rule that the charge-sheet must in every case
recite either the specific
form of the scheduled offence (in that
case dealing in dagga with a value of more than R50 000) with which
an accused is charged,
or the facts the State intends to prove to
establish it.”
[33]
Counsel
for the respondent submits that prosecutors are advised to refer to
provisions of section 51 of Act 105 of 1997, in what
would be a catch
all phrase. If the state were to refer only to section 51(2) of Act
105 of 1997 and the evidence proves the applicability
of section
51(1), the state would be bound by its error. The logic of this
submission is demonstrated by what happened in S v Makatu
[18]
,
where the state relied on section 51(2) but the appellant was
sentenced under the provisions of section 51(1). The appeal against
sentence was upheld on the basis of a material misdirection. Lewis JA
said: “[7] As a general rule, where the State charges
an
accused with an offence governed by s 51(1) of the Act, such as
premeditated murder, it should state this in the indictment.
This
rule is clearly neither absolute nor inflexible. However, an accused
faced with life imprisonment - the most serious sentence
that can be
imposed - must from the outset know what the implications and
consequences of the charge are(
my
emphasis). Such knowledge inevitably dictates decisions made by an
accused, such as whether to conduct his or her own defence;
whether
to apply for legal aid; whether to testify; what witnesses to call;
and any other factor that may affect his or her right
to a fair
trial. If during the course of a trial the State wishes to amend the
indictment it may apply to do so, subject to the
usual rules in
relation to prejudice.”
[34]
Upon a vigilant examination of the
record, the following is reflected at page 12 in the interaction
between the learned acting regional
magistrate and the appellant’s
legal representative:
“
HOF:
Mnr Mickeljohn, kan u vir my bevestig of u klient bewus is van die
bepalinge van artikel 51 wet 105 van. 1997 met betrekking
tot minimum
vonnisse?
MNR
MICKELJOHN
: Ek bevestig Edelagbare en ek het
dit met hom in konsultasie bespreek en die minimum vonnisse ten
opsigte van hierdie spesifieke
aanklag is dan ook aan hom
verduidelik.”
[35]
The use of the words “bepalinge
van artikel 51 wet 105 van 1997 met betrekking tot minimum vonnisse”
in the plural lends
itself to no other interpretation than an
explanation of the minimum sentences. Section 51 includes life
imprisonment. The duty
of the presiding judicial officer is to
satisfy himself that the accused has been appraised of the minimum
sentences. Mr Mickeljohn
as an officer of the court confirmed to the
learned acting regional magistrate that he had explained the minimum
sentences to the
appellant which he understood. It is accordingly my
view that the learned acting regional magistrate complied with his
duty to
satisfy himself that the minimum sentences had been
explained.
[36]
I
accordingly find that the appellant had been apprised of the sentence
of life imprisonment. We are thus at large to consider sentence
afresh subject to the sentencing jurisdiction applicable to the
regional court in terms of section 51(1) read with subsection
3(a)
[19]
of Act 105 of 1997.
THE
SUBMISSIONS ON SENTENCE
[36]
The respondent (appellant on sentence)
submits that:
[36.1]
The offence is serious.
[36.2]
The attack by the appellant must have
had a significant impact on the victim.
[36.3]
The appellant showed no remorse for his
actions.
[36.4]
The appellant violated a position of
trust.
[36.5]
The appellant has a previous conviction
for assault with allegations of abuse of his family.
[36.6]
The appeal against sentence should be
upheld and replaced with a sentence of life imprisonment.
[37]
The appellant(respondent on sentence)
submits that:
[37.1]
The sentence of life imprisonment would
be disproportionate to the crime, the offender and the interests of
society.
[37.2]
The following should be found to be
substantial and compelling circumstances having a cumulative effect.
[37.2.1]
The appellant is the primary caregiver
of his family;
[37.2.2]
There were no serious physical injuries
suffered by the complainant;
[37.2.3]
The appellant at the age of 42 has had
no serious brushes with the law and his stable employment and family
life are not indicative
of an inherently lawless character;
[37.2.4]
The only feature that aggravated what is
a serious crime is the complainant’s age. The complainant’s
age being close
on 16, would not justify the sentence of life
imprisonment when 10 years imprisonment would otherwise have been
applicable;
[37.2.5]
The appellant is a first offender.
THE
PERSONAL CIRCUMSTANCES OF THE APPELLANT
[38]
The personal circumstances of the
appellant are relevant in determining any mitigating factors and
their impact on sentence. The
only mitigating factors which stand out
are that the appellant is employed, is the sole breadwinner and not
primary caregiver of
his family and a first offender. The personal
circumstances of an offender are important factors when the
likelihood of rehabilitation
is considered. The appellant elected to
exercise his right to remain silent at trial, as a constitutional
right. At most it is
clear that he denies any involvement in the
crime. The appellant within his prerogative and right verbalizes no
remorseful.
THE
OFFENCE
[39]
In S v Rabie Holmes JA said “one
should guard against allowing the heinousness of the crime to exclude
all other relevant
considerations. What is needed is a balanced and
judicial assessment of all the relevant factors''.
[40]
The
appellant abused the relationship of trust of an uncle over his
niece. He callously and unperturbed by the presence of his sons
and
family members in the house, satisfied his sexual desires with the
young complainant. He violated the innocence of the complainant
both
physically as she was a virgin; and emotionally by telling her he
would be imprisoned if she spoke out, perpetuating this
by taking her
cellphone number and phoning her to remind her. The complainant’s
injuries it is submitted by the appellant
are such that they were not
serious. In Mudau v The State
[20]
Salduker JA said: “In respect of the severity of the rape,
referred to in the preceding paragraph, it is plain from the medical
report that the doctor did not find any serious physical injuries
(see para 6 above). And there was no further violence in addition
to
the rape. Similarly in S v
Nkawu
2009 (2) SACR 407
(ECG) the complainant had not suffered any serious
injuries as a consequence of being raped. In considering whether
substantial
and compelling circumstances exist justifying departure
from the prescribed sentence, Plasket J was called upon to consider
the
provisions contained in s 51(3)(
,
a>4
>
)('>)
°f the
Criminal Law Amendment Act, 105 of 1997
, as far as the
absence of serious physical injuries to the complainant was
concerned. That subsection provides that when a court
sentences for
rape ‘an apparent lack of physical injury to the complainant’
shall not be regarded as a substantial
and compelling circumstance.
Plasket J, expressed the view, correctly as I see the matter, that a
literal interpretation of that
provision would render it
unconstitutional, since it would require judges to ignore factors
relevant to sentence in crimes of rape
which could lead to the
imposition of unjust sentences. I agree with the learned Judge that
‘to the extent that the provision
restricts the discretion to
deviate from a prescribed sentence in order to ensure a proportional
and just sentence it would infringe
the fair trial right of accused
persons against whom the provision was applied’. He correctly
in my view concluded that the
proper interpretation of the provision
does not preclude a court sentencing for rape to take into
consideration the fact that a
rape victim has not suffered serious or
permanent physical injuries, along with other relevant factors, to
arrive at a just and
proportionate sentence. To this one must add
that it is settled law that such factors need to be considered
cumulatively, and not
individually.”
THE
INTEREST OF SOCIETY OR PUBLIC INTEREST
[41]
Societal
interests in serious crimes involving the abuse of woman and children
has been the subject of attention by the SCA on a
regular basis. In
Mashigo & another v The State
[21]
,
on a rape charge highlighting the
status
quo
21 years into our young democracy; Bosielo JA said:
"It
is sad and a bad reflection on our society that 21 years into our
nascent democracy underpinned by a Bill of Rights, which
places a
premium on the right to equality
(s 9)
and the right to human dignity
(s 10)
, we are still grappling with what has now morphed into a
scourge to our nation...Needless to state that courts across the
country
are dealing with instances of...abuse of women and children
on a daily basis. Our media in general is replete with gruesome
stories
of ...women and child abuse on a daily basis”
[42]
In
S v Kekana
[22]
it was held: “Domestic violence has become a scourge in our
society and should not be treated lightly. It has to be deplored
and
also severely punished...Olivier JA held in S v P
[23]
:
“The right of children are all too frequently and brutally
trampled over in our society. Abuse of children is sadly an all
too
common phenomenon. Those guilty of violating the innocence of
children must face the wrath of the courts”
[43]
In
R v Karg
[24]
the court held: “It is not wrong that the natural indignation
of interested persons and of the community at large should
receive
some recognition in the sentence that courts impose, and it is not
irrelevant to bear in mind that if sentences for serious
crimes are
too lenient, the administration of justice may fall into disrepute
and injured parties may feel inclined to take the
law into their own
hands”.
[44]
Government
and society are alive to the scourge of abuse of children. Despite
all positive attempts, we are no closer to eradicating
this evil in
our society. Courts’ operate in society and must through their
sentencing discretion promote respect for the
law. A message must be
sent to others of like mindedness that “we are determined to
protect the equality, dignity and freedom
of all and we shall show no
mercy to those seek to invade those rights”
[25]
COMPARATIVE
ANALYSIS
[45]
The respondent relies on Kwanape v S as
authority to urge this court to impose life imprisonment as mandated
by the legislature.
The appellant relies on S v Mahamotsa
2002 (2)
SACR 436
(SCA) at 436c-d and S v Nkomo
2007 (2) SACR 198
(SCA) to
deviate from life imprisonment. Marais JA said in Malgas at [21] “It
would be foolish of course, to refuse to acknowledge
that there is an
abiding reality which cannot be wished away, namely, an
understandable tendency for a court to use, even if only
as a
starting point, past sentencing patterns as a provisional standard
for comparison when deciding whether a prescribed sentence
should be
regarded as unjust. To attempt to deny a court the right to have any
regard whatsoever to past sentencing patterns when
deciding whether a
prescribed sentence is in the circumstances of a particular case
manifestly unjust is tantamount to expecting
someone who has not been
allowed to see the colour blue to appreciate and gauge the extent to
which the colour dark blue differs
from it. As long as it is
appreciated that the mere existence of some discrepancy between them
cannot be the sole criterion and
that something more than that is
needed to justify departure, no great harm will be done.”
[46]
Bosielo
JA in S v PB
[26]
,
said: “Van den Heever JA put it more succinctly in S v D
1995
(1) SACR 259
(A) at 260e when she stated that: 'I agree that decided
cases on sentence provide guidelines not straightjackets.' At par
[18]:
“Our everyday experience in the criminal courts proves
that, save where multiple accused are charged as co-accused in one
case for having committed the same offence, no two cases present
exactly the same factual matrix. To compound the problem further,
it
is hard to imagine two accused persons who have exactly the same
personal circumstances...Evidently, these are important matters
which
must be considered in the determination of an appropriate sentence as
they have a direct bearing on what an appropriate sentence
should be.
It follows in my view, that the sentence in such matters will be
different because of the variation in personal circumstances
of the
accused, the nature and gravity of the offence and all other factors
germane to sentencing.”(mv emphasis). Petse JA
in Marota v The
State
[27]
said: “And as this court made plain in S v Fraser
1987 (2) SA
859
(A)7 ‘. . . it is an idle exercise to match the colour of
the case at hand and the colours of other cases with the object
of
arriving at an appropriate sentence’. Ultimately each case must
be decided in the light of its peculiar facts encompassing
the
personal circumstances of the convicted person.”(my emphasis)
Ultimately each matter must be considered on its own unique
facts.
THE
SUITABILITY OF THE SENTENCE OF LIFE IMPRISONMENT
[47]
The
sentence of life imprisonment is the ultimate sentence a judicial
officer may in his or her discretion impose.
[28]
To understand its effect:
section 73(1
)(b) of the
Correctional
Services Act 111 of 1998
relating to the length and form of
sentences, provides as follows: “Subject to the provisions of
this Act - (b) a prisoner
sentenced to life imprisonment remains in
prison for the rest of his or her life.” This is ameliorated
only by section 73(6)(b)(iv)
which provides: “(b) A person who
has been sentenced to - (iv) life imprisonment, may not be placed on
parole until he or
she has served at least 25 years of the sentence
but a prisoner on reaching the age of 65 years may be placed on
parole if he or
she has served at least 15 years of such
sentence;”
[29]
[48]
On
life imprisonment in the context of a 15 year old victim, it was said
in Vilakazi
[30]
supra:
“Custodial sentences are not merely numbers. And familiarity
with the sentence of life imprisonment must never blunt one
to the
fact that its consequences are profound...” “There comes
a stage at which the maximum sentence is proportionate
to an offence
and the fact that the same sentence will be attracted by an even
greater horror means only that the law can offer
nothing more.
Whether, and if so to what extent, the absence of other aggravating
circumstances might diminish the offender’s
culpability will
naturally depend upon the particular circumstances. That their
absence might have that effect is merely affirmation
of the recurrent
theme in Malgas that of the factors traditionally taken into account
in sentencing, 'none is excluded at the outset
from consideration in
the sentencing process”...
[49]
It is accepted that the complainant was
a few months shy of 16 as submitted by the appellant. We are mindful
of what Nugent JA said
at paragraph [59] of Vilakazi: “Bearing
in mind where the complainant’s age fits in the range between
infancy and 16
I do not think that her age by itself justifies what
would otherwise have been a sentence of 10 years imprisonment being
raised
to the maximum sentence permitted by law. A substantial
sentence of 15 years’ imprisonment seems to me to be sufficient
to
bring home to the appellant the gravity of his offence and to
exact sufficient retribution for his crime. To make him pay for it
with the remainder of his life would seem to me to be grossly
disproportionate.” We view this as a guideline and not
straightjacket,
in the context of the unique facts of this matter.
[50]
After
careful consideration of the totality of the facts, we find that the
imposition of life imprisonment on all the factors cumulatively
considered would be disproportionate.
[31]
We are of the view, however, that the facts of this matter justify a
sentence at the higher scale of the deviation from the mandated
sentence. See Malgas paragraph 25J: “In so doing(deviating -
our addition),
account
must be taken of
the
fact that crime of that particular kind has been singled out for
severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed
paving
due regard to the bench mark which the legislature has provided,
(our
emphasis)
[51]
In concluding Nugent JA said in Vilakazi
at paragraph [58] “...In cases of serious crime the personal
circumstances of the
offender, by themselves, will necessarily recede
into the background. Once it becomes clear that the crime is
deserving of a substantial
period of imprisonment the questions
whether the accused is married or single, whether he has two children
or three, whether or
not he is in employment, are in themselves
largely immaterial to what that period should be, and those seem to
me to be the kind
of ‘flimsy’ grounds that
Malgas
said should be avoided. But they are nonetheless relevant in another
respect. A material consideration is whether the accused can
be
expected to offend again. While that can never be confidently
predicted his or her circumstances might assist in making at least
some assessment. In this case the appellant had reached the age of 30
without any serious brushes with the law. His stable employment
and
apparently stable family circumstances are not indicative of an
inherently lawless character.” Whilst we cannot predict
if the
appellant may re-offend again, his personal circumstances may assist.
The appellant at the age of 43 is to be treated as
a first offender.
He is in stable employment and apparent stable family circumstances
as a breadwinner. In respect of the offence,
the rape occurred during
a visit to the appellant’s home in what appears to be an
isolated incident. Without derogating from
the seriousness of the
rape, save for the injuries caused during the course of the rape, the
emotional impact on the victim is
not to be overlooked. Whilst the
victim had received counselling, at the time of sentence in 2013, she
still suffered from the
post-traumatic effects of the rape. It
adversely affected her behaviour and interaction with older men. Her
quality of life was
affected. The current impact of the rape some 5
years on, however, is unknown.
CONCLUSION
[52]
In the result:
[52.1]
The appeal against conviction is
dismissed.
[52.2]
The cross appeal of the respondent on
sentence is upheld. The appellant is sentenced to 22 years
imprisonment.
[52.3]
The appellant shall remain unfit to
possess a firearm in terms of section 103(1 )(g) of the
Firearms
Control Act 60 of 2000
.
[52.4]
The order including the name of the
appellant in the National Register for Sexual Offenders stands.
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
SS
MPHAHLELE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
Appearances
:
On
behalf of the Appellant: Adv JJ Strijdom
On
behalf of the Respondent: Adv Harmzen Director of Public Prosecutions
Pretoria
HEARD
ON 18 April 2016
JUDGMENT
DELIVERED ON 19 April 2016
[1]
2007
(1) All SA 335(SCA)
para 19
[2]
2007 (2) SACR 245 (C)
[3]
2009 (1) SACR 552
(SCA) at [21]
[4]
[S. 52 amended by
s. 34
(a), (b), (c), (d), (e) and (f) of Act 62 of
2000 and repealed by s. 2 of Act 38 of 2007.]
[5]
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at 293E-F, S v Brown and Another 1996 (2) SACR
49 (NC)
[6]
1992 (2) SACR 188
(W) 191A-B
[7]
1932 OPD 79
at 80
[8]
1953 (1) PH H11 (A)
[9]
1954 (3) SA 163
(N) at 165E
[10]
1966
(1) SA 88
(SRA) at 89F and 90E-F
[11]
1971
(3) SA 754 (A)
[12]
1980 (3) SA 755
(A) at 761
[13]
1951
(3) SA 158
(A) at 163E - F
[14]
2002 (1) SACR 111
(SCA) at [19]
[15]
“sexual penetration”
includes
any act which causes penetration to any extent whatsoever by—(a)
the genital organs of one person into or beyond
the genital organs,
anus, or mouth of another person;
“
sexual
violation”
includes any act which
causes— (a) direct or indirect contact between the—(ii)
mouth of one person and— (bb)
the mouth of another person;
[16]
2001 (1) SACR 469
(SCA) at 478D at [12]
[17]
2003 (1) SACR 331 (SCA)
[18]
2006 (2) SACR 582
(SCA) at [7]
[19]
Provided that if a regional court imposes such a lesser sentence in
respect of an offence referred to in Part I of Schedule
2, it shall
have jurisdiction to impose a term of imprisonment for a period not
exceeding 30 years."
[20]
(764/12)
[2012] ZASCA 56
(9 May 2013) [26]
[21]
(20108/2014)
[2015] ZASCA 65
(14 May 2015) at para [31]
[22]
(629/2013)
[2014] ZASCA 158
(1 October 2014) para [20]
[23]
2000(2) SA 656 (SCA) at 660D-E
[24]
1961 (1) SA 231
(A) at 236 .
[25]
S v Chapman 1997 (3) SA 341 (SCA)
[26]
2013 (2) SACR 533
(SCA) [16]-[18]
[27]
(300/15)
[2015] ZASCA 130
(28 September 2015)
[28]
S v Bull
2001 (2) SACR 681
(SCA) [21]: “Since the abolition of
the death penalty this Court has consistently recognised that life
imprisonment is
the most severe and onerous sentence which can be
imposed and that it is the appropriate sentence to impose in those
cases where
the accused must effectively be removed from society”.
[29]
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC):“[8]... in De Lange v
Smuts...'A sentence of imprisonment for life, irrespective of the
policies and procedures to
which such sentence may be subjected by
the Department of Correctional Services, must be regarded by the
Court imposing it as
having the potential consequence, at the very
least, that the accused so sentenced will indeed be incarcerated
until his death.
It is an extreme sentence. It is the most severe
sentence which may lawfully be imposed on an accused such as the one
now before
Court. It is a sentence which, in the ordinary course,
requires a meticulous weighing of all relevant factors before a
decision
to impose it can be justified.”
[30]
2009
(1) SACR 552
(SCA) at [21], [54]
[31]
Malgas supra para [25] I: If the sentencing court on consideration
of the circumstances of the particular case is satisfied that
they
render the prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of
society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.