About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 979
|
|
Reletlaka v S (A718/2016) [2016] ZAGPPHC 979 (28 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NO: A 718/2015
REPORTABLE:
NO
OF
INTEREST TO OTHERS JUDGES: NO
REVISED
DATE:
28.10.2016
In
the matter between:
THOMAS
RALETLAKA
Appellant
and
THE
STATE
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The appellant was convicted on seven counts of rape, one count of
theft, one count of assault with intent to cause grievous
bodily harm
and a count of kidnapping.
[2]
He was sentenced to life imprisonment in respect of the seven counts
of rape, to 12 months imprisonment on the theft charge,
to 3 months
imprisonment on the assault charge and to 5 years imprisonment on the
kidnapping charge.
[3]
This appeal is in terms of section 10 of the Judicial Matters Act, 42
of 2013, which section affords the appellant an automatic
right of
appeal.
AD
CONVICTION
Grounds
of Appeal
[4]
The complainant, a 47 year old lady, testified that she was abducted
by the appellant on 5 August 2013. From 5 August 2013 until
8 August
2013, the date of her escape, the appellant raped and assaulted her
on several occasions. She also testified that the
appellant stole
some of her personal and business items.
[5]
The appellant denied these allegations and testified that he only had
sexual intercourse with the complainant on the 7
th
and 8
th
of August 2013, which intercourse was consensual.
[6]
Although various grounds of appeal were raised in the heads of
argument filed on behalf of the appellant, Ms Moloi, to her credit,
only persisted with two grounds during argument, to wit:
i.
the complainant's evidence did not prove rape, and if so,
ii.
the state only proved six counts of rape.
[7]
The second ground has no merit and may be disposed of first. The
evidence of the complainant, in actual fact, proved eight counts
of
rape. Three on Monday, 5 August 2013, two on Tuesday, 6 August 2013,
two on Wednesday, 7 August 2013 and one on the day of her
escape
being Thursday, 8 August 2013.
[8]
The first ground of appeal is premised on the fact that the
complainant merely testified that the appellant raped her and that
her evidence did not comply with the definition of rape, to wit the
insertion of his penis into her vagina. This ground apparently
does
not relate to the two counts of rape in which the appellant admitted
to have had sexual intercourse with the complainant.
[9]
The question therefore arises whether the court a
quo
misdirected itself in finding the appellant guilty on the
remaining five counts of rape.
[10]
The court a
quo
dealt with the question in its judgment as
follows:
"Both
the parties has addressed me with regard to the provisions
of
the 5th and flh August as to
whether this Court
can
convict the
accused with
regard to the definition in relation to the definition of rape
and what the evidence is on
record.
.Now
the
following
factors
must
be
taken
into
account
when making such
a
decision, one must look at the age
of the complainant, she is
46 years
old,
she is
an
adult
woman.
She is
married
and she has
two children. On the day in question when she testifies in
Court she testifies that she was dragged by the accused and then she
was ordered to take off her clothes. She does not say
that
the accused
took off his clothes
she says
that
the accused
took
off
his
trousers.
And
she
testifies
that
she
was
naked,
her evidence is to the effect that he took her
clothes and he put it in
a
bag and he walked around with it.
On the incidents of the fjh
of August after he had
taken off
his trousers he had her lie down.
She
then testifies that he raped her and she talks about him raping her
more than once on that night ............One must also take
into
account the doctor's evidence he said that she reported to him that
she was raped by an unknown man several times.
The
understanding between herself and the doctor when she said she was
raped, the doctor did
a
vaginal examination
.
....
Now
one cannot take away the
fact that the complainant is
a
lay person she does not know the legal definition of rape.
.....
As
an adult
woman,
married,
with children
experienced
with
life
and
life principles as she testified
she testified that the accused started on the 5
th
of August he took off, he made her take off her clothes, he made
her lie down, he took off his trousers and then he raped her. The
accused himself admits that he had sexual intercourse with
the complainant by sexually penetrating her
on
two
counts
but
he
says
it
was
with
consent
......These
are
two
adults, again who are experienced and are not children. It is
expected from children
to
testify
possibly
with
anatomically
correct
dolls
if
they
do
not understand the vaginal and anal
parts of the mouth and they would actually as I said
earlier
they
would
asy
something
to the effect
that
the accused removed his pants, took out his penis and the
children would call it different things, and they would say they
placed
it in her vaginal area and made up and
down
movements.
It
is not expected of an adult woman to testify like that. When one
looks at all these factors and to take into account whether
the
counts on the 5th and the 6
th
day of August
is problematic
or not, I find that the only
reasonable inference when looking at the evidence in its totality it
cannot be otherwise. It can only
be said
that the
accused
sexually penetrated
the
complainant without
her
consent with
his
penis."
[11]
The above conclusion reached by the court a
quo
is well
reasoned, logical and complies with the dictates of common sense. I
could not find any misdirection in
this
regard.
[12]
In the premises, the appeal against conviction stands to be
dismissed.
AD
SENTENCE
[13]
The appeal is directed at the sentence of life imprisonment imposed
by the court a
quo
in respect of the seven counts of rape.
[14]
Life imprisonment is prescribed in terms of The General Law Amendment
Act, 105 of 1997, in circumstances where a victim was
raped more than
once.
[15]
A court may only deviate from the prescribed minimum sentence,
in terms of section 51(3), if the court finds substantial
and
compelling circumstances justifying the imposition of a lesser
sentence.
[16]
In her heads of arguments, Ms Moloi submitted that the appellant's
personal circumstances coupled with the fact that he was
incarcerated
prior to sentence for 14 months, constituted substantial and
compelling circumstances, justifying the imposition of
a lesser
sentence.
[17]
The accused was forty years of age at the time of sentencing. The
court a
quo
obtained a pre-sentencing report and
properly considered the accused's personal circumstances as evidenced
in the report. These
circumstances in itself do not, in my view,
constitute substantial and compelling circumstances as envisaged in
the Act. These
circumstances must, in any event, be considered in
conjuction with the seriousness of the crime and the interests of the
community.
[18]
The court a
quo
also had regard to a victim impact report
evidencing the devastating effect the crime had on the complainant,
her husband and children.
The circumstances under which the crime was
committed is, even in a country where the abuse of woman and children
are rife, horrific.
The complainant was kept naked and tied up for
three days and four nights. She was assaulted and raped no less than
8 times during
this ordeal.
[19]
It is difficult to comprehend the state of mind of a person who
subjects another human being to this kind of treatment.
[20]
Ultimately, the test for an appropriate sentence remains that the
sentence imposed must be proportionate to the nature of the
offence
and the circumstances under which it was committed.
[21]
I am satisfied that no grounds exist to justify an interference with
the sentence imposed by the court a
quo
and the appeal
against sentence should also fail.
ORDER
In
the premises, I propose the following order:
The
appeal against conviction and sentence is dismissed.
_________________________________
N
JANSE VAN NIEUWENHUIZEN J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
I
agree.
_________________________________
P
A VAN NIEKERK AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
It
is so ordered.
APPEARANCE
ON BEHALF OF THE APPELLANT:
Advocate
M B Moloi
APPEARANCE
ON BEHALF OF THE STATE:
Advocate
More
Date
of hearing: 24 October 2016
Date
of judgment: 28 October 2016