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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 443
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Sekamette v S (A790/15) [2016] ZAGPPHC 443 (15 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NUMBER A 790/15
DATE:
15/6/2016
Reportable:
No
Of
interest to other judges: No
Revised.
SEKAMETTE
JOHN
Appellant
And
THE
STATE
Respondent
JUDGMENT
AC
BASSON, J
[1]
The appellant in this matter was convicted in the Benoni Regional
Court on a count of rape. He was sentenced to 10 years’
imprisonment. The applicant was granted leave to appeal against
conviction and sentence.
[2]
The complainant, a 24 year old woman, testified that when she found
out that she was pregnant she informed her sister about
the
pregnancy. Her sister obtained a number of a “doctor” who
could assist the complainant in terminating her pregnancy.
[3]
The complainant met with the doctor. He gave her four pills and she
paid him an amount of R 250.00 for his services.
[4]
When the pills did not have the desired effect she phoned the doctor.
He informed her to meet him the following day at the Daveyton
Mall.
She met with the doctor at the Daveyton Mall. After she had spoken to
the doctor the said doctor met a second gentleman (referred
to by the
complainant as “the second doctor”) and had a discussion
with him. The complainant identified the second
“doctor”
as the appellant. The complainant thereafter left in the company of
the appellant and went to a “surgery”.
The complainant
described the “surgery” as a “shack”. The
complainant testified that the appellant told
her that he was going
to give her three pills and that she had to put them in her mouth. He
then told her that she had to insert
the fourth pill into her vigina.
During a conversation with the appellant he asked the complainant
whether she had a boyfriend.
She told him that she did not inform her
boyfriend of her intention to terminate the pregnancy.
[5]
The applicant then told her to lie on her back. She told him that she
could not insert the pill into her vagina. The appellant
then said to
her that he will insert the pill into her vagina but that she had to
close her eyes. The appellant then proceeded
inserting his finger
together with the pill into her vagina. She then felt him on top of
her and felt him inserting his penis into
her vagina. She opened her
eyes and tried to push him away. The appellant told her to keep quiet
when she tried to push him away.
She was then told to put her clothes
on and leave. When she got home she informed her sister of the
incident. Her sister called
the first doctor who told her that this
was not how they operated. The complainant and her sister then went
to the police to report
the incident.
[6]
The complainant was adamant that it was the applicant who raped her
and that she did not give her consent. The complainant’s
sister
also confirmed that when the complainant returned from the “doctor”
she told her that she was raped.
[7]
It is common cause that the appellant was arrested by Constable
Masago a few months after the incident. Constable Masago and
the
complainant first went to look for the appellant at the shack that
was used as a surgery and where the complainant was raped.
He found
that the shack was burnt down by the community. The complainant then
informed him that the appellant usually distributed
pamphlets in the
vicinity of the Daveyton Mall around the taxi rank. Constable Masago
went there and found two males distributing
the pamphlets. The
complainant confirmed in her evidence that they were distributing the
very same pamphlets that she had seen
before. The complainant called
the number and was told by the person who answered the phone that
they have relocated. It was not
disputed by the appellant that he was
the one who had answered the phone. According to the appellant he
merely answered the phone
on behalf of Dr Subu.
[8]
Constable Masago, together with other police officers, thereafter
proceeded to the address. Constable Masago pretended to be
the
brother of the complainant. The appellant told them what his fees was
and that he would give them tablets and a mixture. Warrant
Officer
Bowe accompanied the complainant into a room. There they encountered
two gentlemen: The appellant and a one Godfrey. The
complainant
positively identified the appellant as the person who raped her
whereafter the appellant was arrested.
[9]
The appellant’s version was that he has never met the
complainant. He, however, admitted that it was his job to distribute
the pamphlets. He also admitted that he had the doctor’s
phone with him but explained that he merely answered the phone
to
give directions to the doctor’s surgery.
[10]
The learned magistrate summarised the evidence and considered whether
the State has proven its case beyond a reasonable doubt.
The learned
magistrate was also fully alive to the fact that the complainant was
a single witness.
[11]
In respect of the identity of the appellant, I am in agreement with
the findings of the learned magistrate that the complainant
had ample
time to look at the appellant: She was with him during broad daylight
and she had spent some time with him before and
after he had raped
her. As set out hereinabove, the complainant accompanied the
appellant to the shack. When they were in the shack
she also had a
discussion with him. All of this occurred during broad daylight. On
the day of the arrest, the complainant also
had no difficulty in
identifying the appellant as the one who had raped her.
[12]
On behalf of the appellant it was submitted that the presiding
magistrate ought to have rejected the complainant’s
identification
of the appellant as the one who had raped her. There
is no merit in this submission. Firstly, the presiding magistrate was
alive
to the fact that the complainant was a single witness and that
her evidence had to be approached with due caution. Secondly, the
presiding magistrate took into account that the complainant was in
the presence of the appellant for some time before he raped
her and
that this interaction with the appellant took place during broad
light. Thirdly, the presiding magistrate also duly took
into account
the fact that the complainant had no hesitation to identify the
appellant on the day he was arrested. Moreover, when
the appellant
was arrested he was in possession of the very cell phone that she
phone him. It was also not in dispute that he had
answered the cell
phone.
[13]
I am in agreement with the finding of
the learned magistrate that the state has proved its case beyond a
reasonable doubt.
Ad
sentence
[14]
It
is trite that a court can only interfere with the sentence imposed by
the trial court where it is vitiated by a material misdirection,
or
where the disparity between the sentence of the trial court and the
sentence which the appellate court would have imposed, had
it been
the trial court, is
so
marked that it can properly be described as disturbingly
inappropriate”
.
See
S
v Sadler
:
[1]
“
[10]..
[I]mportant to emphasise that for interference to be justified, it is
not enough to conclude that one's own choice of penalty
would have
been an appropriate penalty. Something more is required; one must
conclude that one's own choice of penalty is the appropriate
penalty
and that the penalty chosen by the trial court is not. Sentencing
appropriately is one of the more difficult tasks which
faces courts
and it is not surprising that honest differences of opinion will
frequently exist. However, the hierarchical structure
of our courts
is such that where such differences exist it is the view of the
appellate Court which must prevail.'
See
also S v C
wele
& another
:
[2]
[33]
It is in my view unnecessary to consider the question whether the
trial court misdirected itself when it considered the existence
or
otherwise of substantial and compelling circumstances. This is
because I consider the disparity between the sentence imposed
by the
trial court and that which this court would have imposed, had it been
the trial court, to be so marked that it can properly
be described as
disturbingly inappropriate.’
[15]
I am not persuaded that the sentence
imposed by the magistrate suffer any such defects and must
accordingly stand. More in particular,
it cannot be overlooked that
the appellant took advantage of a young woman in a desperate
situation. The complainant was extremely
vulnerable at the time and
wanted to terminate her pregnancy. She was taken advantage of by the
appellant who pretended to be a
doctor and raped her. Although the
appellant did not use violence it does not, in my view, detract from
the seriousness of the
crime. I am in agreement with the conclusion
reached by the learned magistrate that there are no compelling and
substantial circumstances
present requiring a court to deviate from
the minimum sentence applicable.
[16]
The order I propose is the following:
The
appeal against conviction and sentence is dismissed.
__________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree and it is ordered
_________________________________
W
HUGES
JUDGE
OF THE HIGH COURT
For
the appellant:
For
the state:
[1]
2000
(1) SACR 331 (SCA).
[2]
2
013
(1) SACR 478
(SCA).