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[2015] ZAFSHC 16
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Seitshiro v S (A167/2014) [2015] ZAFSHC 16 (12 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.:A167/2014
In
the appeal of:
JEFFREY
BONGANI SEITSHIRO
.........................................................................
Appellant
and
THE
STATE
…..........................................................................................................
Respondent
CORAM:
MOLEMELA, JP
et
MURRAY, AJ
HEARD
ON:
3 NOVEMBER 2014
DELIVERED
ON:
12 FEBRUARY 2015
MOLEMELA,
JP
[1]
The appellant was charged with rape and assault with intent to do
grievous bodily harm in the Regional Court in Bloemfontein.
The rape
he was charged with was one as contemplated in
section 51
of the
Criminal Law Amendment Act 105 of 1997
, for which life imprisonment
was the prescribed minimum sentence. He pleaded not guilty to both
charges. He was subsequently convicted
of rape in which the
complainant was raped more than once and which rape involved the
infliction of grievous bodily harm, and acquitted
on the second
charge. The trial court found that there were substantial and
compelling circumstances that warranted a deviation
from the
applicable minimum sentence and imposed a sentence of 25 years’
imprisonment on the appellant. Aggrieved by the
sentence imposed, the
appellant applied for leave to appeal against his sentence. The trial
court dismissed that application. His
appeal against sentence is with
leave of this court.
[2]
The facts that led to the appellant’s prosecution are the
following. The appellant and the complainant used to be lovers.
The
complainant subsequently terminated the affair. A few days after the
termination of the affair, the appellant met the complainant
and her
daughter in the street. He joined them and the three of them
proceeded to the complainant’s home. The complainant
prepared
her sickly daughter for bed and gave her medication. She then
requested the appellant to leave. The appellant refused
to leave. The
complainant reminded the appellant that their relationship was over.
The appellant told the complainant that she
would have to have sex
with him just as she did with other men. He then started assaulting
the complainant. The complainant screamed
for help but her daughter
could not come to her assistance due to her illness, which had
affected her mobility. As a result of
the assault, the complainant
sustained a laceration to her forehead, bruised, black eyes, a
bruised cheek, and a bruised inner
lip. The appellant then proceeded
to have sexual intercourse with her without her consent. The
appellant spent the night at the
complainant’s place. He raped
her again in the morning and then left. The complainant laid charges
against the appellant,
which led to his arrest, prosecution and
subsequent conviction.
[3]
On appeal, it was submitted by counsel for the appellant that the
sentence imposed was shockingly inappropriate, induced a sense
of
shock and was disproportionate to the offence. It was further
submitted that the trial court had over-emphasised the interests
of
the community at the expense of the appellant’s personal
circumstances. It was also contended that the trial court erred
by
not taking proper consideration of the fact that the appellant
committed the offence while he was under the influence of liquor.
[4]
I have already alluded to the fact that although the rape committed
by the appellant fell in the category of those in respect
of which
the applicable minimum sentence is life imprisonment, the trial court
found that there were compelling circumstances that
justified a
departure from imposing that sentence. The trial court was thus at
large to impose any appropriate sentence.
[5]
Rape is a serious offence that has an element of violence. In
S
v C
[1]
the
court described this revolting scourge in the following terms:
“
Rape
is regarded by society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim – he
murders
her self-respect and destroys her feeling of physical and mental
integrity and security. His monstrous deeds thereafter
after haunts
his victim and subjects her to mental torment for the rest of her
life – a fate often worse than loss of life”.
[6]
In this particular instance, a serious aggravating factor is the fact
that the complainant was raped in the sanctity of her
home and in the
presence of her daughter. The complainant obviously trusted the
appellant, which is why she did not resist when
he accompanied her
and her daughter to her home. The appellant took full advantage of
the vulnerability of the appellant’s
daughter on account of her
illness and assaulted the complainant in the knowledge that her
daughter was helpless. The daughter’s
effort of dragging
herself out of the house so as to seek help from the neighbours did
not bear any fruit, nor did this effort
in any way discourage the
appellant from assaulting or raping the complainant. As stated
before, the complainant sustained injuries
in the assault and was
bleeding. Notwithstanding these injuries, the appellant proceeded to
rape her. He raped her again in the
morning, renewing the shock and
humiliation that she had experienced during the night. This rape was
committed with the appellant’s
daughter in the next room, and
was clearly a traumatic experience for both mother and daughter.
[7]
The appellant testified in mitigation of sentence and placed his
personal circumstances on record. He was 45 years at the time
of
commission of the offence. He left school after passing grade 7. He
was employed at the time of the incident. He was married
and had two
children that depended on him for support. His elderly parents were
also depending on him for their support. He testified
that the
incident happened while he was in a fit of rage. He had also consumed
liquor. He testified that he was remorseful but
went on to state that
it was the complainant who had caused him to do all that he did. The
trial court correctly observed that
he did not want to accept
responsibility for his actions. Obviously this refusal to be
accountable has a bearing on his chances
for rehabilitation.
[8]
As stated before, the first rape occurred at night and the second one
in the morning. The appellant clearly had sufficient time
to sober up
and to compose himself during the course of the night.
Notwithstanding the fact that the complainant’s right
eye was
so swollen that it was closed in the morning, the appellant showed
her no mercy and raped her a second time.
[9]
Having considered all the circumstances of the case, I am satisfied
that even after finding that the mitigating factors cumulatively
viewed constituted substantial and compelling circumstances
warranting a departure from the mandatory life imprisonment sentence,
it was clear that the aggravating factors were of such a nature as to
warrant the imposition of a lengthy imprisonment sentence.
[10]
In
S
v MALGAS
[2]
the court found that even where substantial and compelling
circumstances were found to exist,
the
sentence to be imposed in lieu of life imprisonment should be
assessed paying due regard to the bench mark which the legislature
has provided. In that case, the appeal court having considered
all the circumstances of the case, set aside the sentence
of life
imprisonment and replaced it with 25 years’ imprisonment.
In
this matter the applicable sentence is life imprisonment.
In
casu,
I
am satisfied that in the light of all the circumstances, including
numerous aggravating factors, a sentence of 25 years’
imprisonment is not disproportionate to the gravity of the rape that
the appellant committed. These circumstances have already
been
canvassed earlier in the judgment and need not be repeated. I am
satisfied that the trial court paid due consideration to
the
appellant’s personal circumstances and properly balanced them
against the offence committed and the interests of society.
[11]
In
S
v Salzwedel & Others
[3]
, the court stated as follows:
“
An
appeal court is entitled to interfere with a sentence imposed by a
trial court in a case where the sentence is “disturbingly
inappropriate” or totally out of proportion to the gravity or
magnitude of the offence, or sufficiently disparate or vitiated
by
misdirections of a nature which shows that the trial court did not
exercise its discretion reasonably,”
The
trial court committed no misdirection. The sentence imposed is also
not disproportionate to the gravity of the rape committed
by the
appellant. There is thus no reason to tamper with the sentence it
imposed.
[12] Wherefore the
following order is made:
(i)
The appeal against sentence is dismissed.
(ii)
The sentence of 25 years’
imprisonment imposed by the trial court is confirmed.
___________________
M.
B. MOLEMELA, JP
I
concur.
______________
H.
MURRAY, AJ
On
behalf of the appellant: Mr S Kruger
Instructed
by
Legal
Aid
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Chalale
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
[1]
1996(2)
SACR 181C at 186D.
[2]
2001(1)
SACR 469 (SCA) at par 34
[3]
1999(2)
SACR 586 (SCA) at 591 F-H