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[2015] ZAFSHC 51
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V v S (A85/2014) [2015] ZAFSHC 51 (12 March 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION,BLOEMFONTEIN
Case No: A85/2014
In the matter
between
J[...]
A[...] V[...] A[...]
….................................................................................................................
Appellant
and
THE
STATE
…..........................................................................................................................
Respondent
CORAM:
EBRAHIM
J,
et
TSATSI,
AJ
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
17
NOVEMBER 2014
DELIVERED
ON:
12
MARCH 2015
[1 ] This is an
appeal against conviction and sentence. The appellant was charged and
prosecuted of rape in the Regional Court in
Welkom. He pleaded not
guilty. The appellant was sentenced to fifteen years imprisonment. He
was legally represented throughout
the trial. He was declared unfit
to possess a firearm in terms of section 103 of Act 60 of 2000. The
regional court found substantial
and compelling circumstances that
warranted a sentence less than the prescribed minimum sentence, which
is life sentence. Such
substantial and compelling circumstances were
based on the fact that the appellant was convicted of assault with
intent to do grievous
bodily harm, where the complainant testified
against him. I will return to this aspect later. The appellant lodged
an application
for leave to appeal against the rape charge which was
granted in regard to both conviction and sentence. The respondent
supported
the conviction and the sentence imposed on the appellant.
[2] According to the
charge sheet, the alleged rape took place on 26 February 2004 when
the complainant was nine years old. The
testimony of the complainant
was conveyed through the CCTV in terms of section 158(3) of Act 51 of
1977. The court informed the
appellant that his name will be listed
in the National Register of Persons who have sexually abused children
and mentally retarded
women.
[3]
Before I proceed with the events that led to the conviction and
sentence of the appellant, I need to point out the following:
Another
court other than the one that was dealing with the rape charge dealt
with the assault charge against the appellant. The
court
a
quo
that
heard the rape charge against the appellant did not have to deal with
the assault charge against the appellant. It only had
to deal with
the rape charge.
[4] The events
giving rise to the charge upon which the appellant was convicted and
sentenced are summarized thus: The complainant
testified as follows:
In 2004 she attended school at H[...] Primary School in Welkom. She
was a boarding student. She was nine
years old at the time. She
stayed with a girl by the name of L[...] who was her roommate. The
two did not get along well. They
used to argue a lot. L[...] was said
to be the one doing “naughty” things” and then
pretended like it was the
complainant who did “naughty”
things. This created unpleasant situations for the complainant and
had negative effect
on the complainant. It also affected her life
negatively. As a result her mother noticed that she was not the same
as she was teary
and cried a lot. There was something bothering her.
[5] On 26 February
2004 around three o’clock in the afternoon L[...] informed her
that there was somebody who wanted to see
her. She went to the room
with L[...] and they both found L[...]’s father (the appellant)
waiting. The appellant immediately
yelled at her, and asked her why
she not leaved his child alone. He ordered L[...] to leave the room.
The appellant then ordered
her to remove her pants and panty. He
ordered her to lie on the bed and never to say a word. The appellant
had his clothes on and
unzipped his trousers whereupon he put his
penis into her vagina. She felt like something inside her was tearing
apart. The experience
was very painful and gave her an excruciating
pain. After the rape the appellant took her to the bathroom and
assaulted her. He
told the complainant that he would kill her and her
family if she told anybody anything. The appellant suppressed the
rape experience
and never told anybody about it until she went to
another school. She knew the appellant because the latter used to
drop his daughter
L[...] at school.
[6] She further
testified that during 2008 she attended school at L[...] Secondary
School in Jacobsdal as a grade 9 student. There
was an initiation
process with the matrics. It was during this time that the students
tried to push suppositories between her buttocks.
Shortly thereafter
she became hysterical and psychotic. This experience reminded her of
the rape incident that took place in 2004.
There was also a girl in
the class room who had a strong resemblance of L[...]. On 5 February
2008 she received a text message
on her cell phone that read: “I
am coming to get you”. She immediately thought that it was
L[...]’s father. Subsequent
to the text message she became
confused, delusional and disorientated. When she regained her senses
her mother informed her that
she mentioned that she was raped.
[7]
I should interpose at this stage and mention that the complainant’s
testimony was interrupted in order for the court to
do an inspection
in
loco
at
the school hostel where the complainant was required to point out
certain places. The court concluded that there were various
points of
entrance contrary to what the appellant alleged. I should interpose
once again and mention that the complainant was brought
back into
court at the end of her testimony to identify the appellant. It was
stated that the complainant cried profusely and had
to be removed
from the court room. She was brought back into the court room still
emotional and pointed out the appellant as the
person who raped her.
[8] The complainant
confirmed her testimony under cross examination. She was cross
examined at length regarding security and access
control implying
that the appellant could not have gained access to her hostel room.
She insisted that the appellant was able to
gain access to her hostel
room.
[9] Dr Sharon
Straite, the psychologist testified and told the court that she
diagnosed the complainant with post-traumatic stress
disorder,
psychosis and major depression. She treated the complainant for nine
years, including after the complainant’s testimony.
Based on
the consultations and assessments she believed that the complainant
was sexually abused by the appellant. She reiterated
what the
complainant told the court. She further told the court that the
suppression by the complainant was caused by fear and
threats made by
the appellant to the complainant. Such threats included the fact that
the appellant told the complainant that he
would kill her family if,
she (the complainant) told anybody about him. Dr Straite described
the touching by the students on the
complainant’s buttocks as
secondary trauma. This secondary trauma brought the initial rape
incident. Dr Straite further testified
that another factor
contributing to the suppression was that the complainant found the
experience too difficult to deal with. She
told the court that during
the consultations she could see the trauma and believed that the
complainant did not fabricate the rape
incident.
[10]
Annamarie Coetzee is an experienced social worker who deals with
child sexual abuse at the Child Welfare Clinic. She also interviewed
the complainant in an effort to establish if the latter was in deed
raped. She used various techniques and skills to assess the
complainant and found that the complainant was an intelligent child
who performed very well academically. According to her findings
there
were no fabrications by the complainant regarding the rape incident.
She explained the term dissociative amnesia referred
to as Kojala.
According to Ms Coetzee dissociative amnesia refers to “.....the
ability of the human mind to take an experience,
split in into
different pieces and act to those pieces separately from each other,
the different pieces being put into separate
compartments in your
conscious mind. You are aware of both pieces, but you don’t
tend to think of them at the same time”.
She referred to
specific incidents of the complainant’s experience like the
blood on her panty. She told the court that her
conclusion was that
the complainant was raped by the appellant during the first term of
2004. She further testified that this experience
has caused the
complainant severe emotional damage. Ms Coetzee confirmed her
testimony under cross examination.
[11] Ms v[...]
S[...] (“the complainant’s mother”) testified that
the complainant informed her about the problems
she had with L[...].
She further told her mother that L[...]’s father (the
appellant) swore at her and told her to leave
L[...] alone. She went
to see the school principal in an effort to resolve the matter. She
suggested that her daughter (the complainant)
be separated from
L[...]. The school agreed. Whilst the complainant was busy packing
her belongings to move to another room, the
school bell rang. This
was an indication that it was time for the girls to bath. The
complainant became hysteric and refused to
bath. Her mother wanted to
know why she refused to bath. The latter told her mother that the
appellant previously tried to drown
her in the bath but that she
managed to escape. She told her mother that the appellant threatened
to kill her and her whole family.
[12] The
complainant’s mother visited the principal once again and told
the principal what the complainant told her. The mother
then reported
the matter to the police and laid a charge of attempted murder
against the appellant. As a result of the said charge
the appellant
was prosecuted and found guilty on a charge of assault with intent to
do grievous bodily harm. The appellant was
sentenced to a wholly
suspended sentence.
12.1 The mother made
an appointment with Dr Sharon Straite to organize therapy for the
complainant. The latter received therapy.
At this stage nothing was
said about the alleged rape. In the first week of school, the clinic
sister called her and informed her
that the complainant was injured.
Subsequently she fetched the complainant and stayed with her at home
for a few days. The complainant
refused to return to school but
eventually she did. During the time when the complainant returned to
school, the complainant acted
peculiar. The secretary called the
mother and the latter fetched the complainant from school. The
complainant did not recognize
either her mother or father and
expressed concern if they were going to hurt her. She referred to her
mother as “aunt”
and referred to her father as “uncle”.
The complainant’s mother called Dr Sharon Straite once again in
an effort
to organize therapy sessions. It was during this time that
the complainant was hospitalized for ten days. It was during her
hospitalization
that the complainant said that during the initiation
at school some learners tried to push something into her buttocks.
She was
released from hospital and stayed at home. She still acted
confused, traumatized and delusional. She regressed and acted as if
she was far younger than she was at the time. She referred to her
friends when she was nine years old. She also spoke in a voice
of a
“little girl”.
[13] The
complainant's mother further testified that the complainant told her
about what the appellant did to her. She repeated
the incident of the
bathroom to her mother. The complainant only related the rape
incident after the initiation experience and
at the time when she was
in a confused state. This time she related the rape incident to her
mother exactly the way she testified.
The complainant’s mother
asked the complainant about the rape incident when the latter was not
in her confused state. The
complainant was shocked and said that her
mother should not have found out. Dr Sharon Straite was called again
but the complainant
refused to repeat what she told her mother.
Eventually the complainant wrote the letter describing the same
incident that she told
her mother when she was confused. Dr Sharon
compiled a report which was marked exhibit “E”. Further
evidence of the
mother was that the complainant refused a physical
examination and that she fell back into a state of confusion. He
complainant’s
mother confirmed her testimony under cross
examination.
[14] On 19 May 2008,
Dr Britz, the gynaecologist sedated the complainant and did an
anaesthetic. The anaesthetic revealed that there
was hymeneal damage
which was healed ready. There was 3x3 centimetres of old tears. It
was Dr Britz’s testimony that there
was vaginal penetration at
some point, but could not say what kind of object was used, but it
was not a small object. Dr Britz
agreed under cross examination that
this could have been caused by child molestation. This could be
consistent with penile penetration
or an object like a stick.
[15] The appellant
testified and raised a defence of an alibi. He told the court that he
was with some people transporting furniture
on the day in question
and he never went to his child’s school. He said that they
started moving furniture from ten o’clock
in the morning until
nine o’clock in the evening. He further told the court that
they used three bakkies which drove together
every time they moved
the furniture. He denied that he raped the complainant. He further
denied that he gained access to the complainant’s
hostel room.
[16] The appellant
told the court during cross examination that he had never met with
the complainant before. He did not know the
complainant who was his
child’s roommate. He said that he only went to the boarding
school once when he had to take a towel
to his daughter. The
prosecutor then challenged him and asked him if he only went once to
his child’s boarding school. He
responded and said that he
could have been at the boarding school two or three times. The
prosecutor further challenged the appellant
and told him that the
complainant knew him as L[...]’s father, the complainant could
recognize him. He contradicted himself
further and said that he used
to go to his child’s boarding school every Friday to fetch
L[...]. The appellant further testified
that he did not know of any
problems between L[...] and the complainant. The appellant further
denied that it was possible for
him to gain access to the building.
The prosecutor then reminded him that the complainant’s mother
told the court that she
could go into the hostel several times, put
something into the complainant’s room. The appellant disagreed
and said that
it was not possible as he could only go up to the
principal’s office.
[17] The prosecutor
challenged the appellant about why he remembered the specific times
when he started moving the furniture and
when he finished, what was
so special about that day. The prosecutor further indicated to the
appellant that it was strange that
the appellant remembered specific
details of what happened on the day in question four years later. The
appellant then said that
it was because he was there and that was
what was written on his police statement. The prosecutor reiterated
and put to the appellant
that he was the one who raped the
complainant on the day in question, there was no reason for the
complainant to falsely accuse
him of rape. The appellant answered and
said that the complainant may have known him but he did not know the
complainant.
[18]
The issue to be decided in this appeal was whether or not the court a
quo
proved
beyond a reasonable doubt that the complainant was raped by the
appellant. The other issue was whether or not a 15 year prison
sentence handed down against the appellant was appropriate. The
identity of the appellant was also an issue.
[19] Attorney for
the appellant submitted that the court omitted to evaluate the
argument of the complainant’s mother, Ms
S[...]. He also said
that the court omitted to evaluate the evidence of Ms Coetzee. He
said that the only finding regarded the
evidence of the complainant.
He further told the court that the complainant was a single witness
who gave her evidence in a piecemeal
fashion. His further submission
was that the complainant only mentioned the assault but never said
anything about the rape either
to her mother, or Dr Straite. He said
that of concern was the fact that the complainant made these serious
allegations during a
state of confusion. The other concern was that
the complainant was not willing to undergo medical examination. The
defence did
not have an opportunity to call witnesses. The defence
asked for the matter to be postponed and the court refused.
[20] It was
submitted on behalf of the respondent that the case against the
appellant was overwhelming. The criticism against the
complainant not
to report the matter sooner was unfounded. It was stated by Ms
Coetzee that the reason why the complainant took
so long to report
the rape was because she suffered from “dissociative amnesia.”
The complainant’s traumatic
rape experience was triggered by
the initiation process at school when the learners tried to push
something in her buttocks. The
said experience was also blocked by
the fact that the appellant threatened to kill the complainant’s
family. Counsel for
the respondent further argued that it was a fact
that the complainant was raped by the appellant. The reason why the
court refused
to allow postponement when the appellant asked for one,
was because the appellant took too long to call witnesses. Counsel
for
the respondent further argued that there was no reason for this
court to interfere with the sentence handed down by the court a
quo.
[21]
The
cautionary rule generally means that the court is obliged to
consciously remind itself to be careful in considering evidence
which
practice has taught should be viewed with suspicion. In addition the
court should seek other safeguard of reducing the risk
of a wrong
finding based on suspect evidence (Schwikkard and Van der Merwe,
Principles of
Evidence
. 3
rd
ed)
2005.
In
J v S
1998 (4)
BCLR
424
(SCA),
the court dismissed the appeal by reasoning that a case might call
for a cautionary rule approach only where there was some
evidential
basis for suggesting that the evidence of the witness may be
unreliable and not simply because the witness was a complainant
of a
sexual offence.
[22]
In
S v J
1998 (1)
SACR
470
(SCA),
it was stated that the cautionary rule in sexual assault cases was
based on an irrational and outdated perceptions. It unjustly
stereotyped complainants in general cases, most of whom are women, as
being unreliable. The cautionary rule was abolished in South
African
Law in
1998
by
the Supreme Court of Appeal’s decision in
S
v Jackson
(supra).
This
decision brought South African Law in line with comparable foreign
jurisdictions like Canada, England, New Zealand and California.
The
rule has also been abolished in Namibia and Zimbabwe
(S
v Banana
2000 (2)
SACR
1
(ZS).
Statutory confirmation of the abolition of the cautionary rule is
found in section
60
of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act
32
of
2007.
It
provides that:
“
Notwithstanding
any other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence.”
[23]
In
S v Sauls
1981 (3)
SA
172
(A)
180,
the
court held that there is no rule or test or formula to apply when it
comes to the consideration of the credibility of a single
witness.
The trial court should weigh the evidence of the single witness and
second consider the merits and demerits, having done
so, should
decide whether it is satisfied that the truth has been told despite
shortcomings or defects or contradictions in the
evidence.
[24]
In
S v Shackell
2001
(4) SA 1
(SCA) the court held that the principle in criminal
proceedings is that the prosecution must prove its case beyond a
reasonable
doubt and that a mere preponderance of probabilities is
not enough. It follows that the onus rests on the state to prove
every
element of the crime alleged, including that the appellant is
the perpetrator, that he had the required intention and the crime
in
question was unlawful (Schwikkard and Van der Merwe:
Principles
of Evidence
(3
rd
ed) at paragraph 31.3.1. In order to be acquitted, the version of the
appellant has to be reasonably possibly true
(S
v Van der Mevden
1999
(1) SACR 447
W). Nugent J in
S
v
Van der
Mevden
(supra)
said
that:
"... These are
not separate and independent test, but the expression of the same
test when viewed from opposite perspectives.
In order to convict, the
evidence must establish the guilt of the accused beyond reasonable
doubt, which will be so only if there
is at the same time no
reasonable possibility that an innocent explanation which has been
put forward might be true. The two are
being inseparable, each being
the logical corollary of the other.”
[25]
In
S v M
2006 1
SACR
135
(SCA)
at
272,
Cameron
J criticized the cautionary rule as it stood prior to
S
v Jackson
(supra)
and
said:
“
The
recent radical reason of the so-called cautionary rule in sexual
assault cases ... is a reminder that today’s perceived
wisdom
regarding human behaviour and the ability of the lay person to
correctly interpret it, may tomorrow be discarded as irrational
and
out of date.”
[26]
In
casu
the
complainant gave a detailed and logical account of the rape incident,
even though she took a long time to report the rape to
relevant
authorities. It is highly improbable that a child of that age could
fabricate such details events about rape. It was documented
that she
suffered from temporary memory loss, known as “dissociative
amnesia”. It has been alleged that the complainant
used
“dissociative amnesia” as a defence mechanism. This is
not unusual as we have heard stories of men and women who
were
allegedly raped when they were young and only reveal such rapes more
than thirty years later, sometimes even more. In casu
the complainant
described the details of the rape by saying that the appellant put
the private part that he used to urinate into
her private part that
she also use to urinate. There is no doubt that this is a description
of rape. There is no rule of law requiring
corroborations in criminal
law. If some safeguard reducing the risk of conviction is required,
the safeguard must not consist of
corroboration but if corroboration
is relied upon as the safeguard, it must go the length of implicating
the accused in the commission
of the crime
(S
v Artman and Another
1968
(3) SA 339
(AD). In light of the preceding, the evidence in a
particular case may call for the application of a cautionary rule. It
will depend
on the facts and circumstances of such case as to whether
such an approach was necessary. I am of the view that
in
casu
the
court did call for a cautionary approach. This is despite the fact
that the learned magistrate was free to “proceed to
consider
the evidence without the restraints imposed by the cautionary rule.”
(This is what Mclunsky AJA observed in
S
v M
(supra)
with
reference to
S v
Jackson
(supra).
[27] I am satisfied
that the complainant’s evidence was true and credible in every
material respect. She gave an honest, coherent
and logic account of
events. This is despite the fact that she was only 15 when she
testified. There was no indication that she
had a grudge against the
appellant, in fact, the opposite seemed to be true. The appellant was
the one who seemed to have a grudge
against the complainant due to
the fact that he believed that the complainant was harassing his
daughter. I see the complainant
as an opportunistic person who
misused the rift between his daughter and the complainant as well as
the vulnerable position the
complainant was in. My considered view
was that the appellant used rape or sex against the complainant as a
form of punishment
against the complainant.
[28]
The approach to be adopted in regard to an alibi defence, which is
essentially a straightforward denial of the state's case
on the issue
of identity, is trite (Schwikkard, Van der Merwe,
Principles
of Evidence,
2
nd
Ed at par 30 11 24 (p517)) Firstly there is no burden of proof on the
accused to prove his alibi. The burden remains on the state
to prove
its case throughout. As with any other defence, if there is a
reasonable possibility that the accused's alibi could be
true, then
the state has failed to discharge its burden and he must be given the
benefit of the doubt. Where a defence of an alibi
has been raised and
the trial court accepts the evidence in support thereof as being
possibly true, it follows that the trial court
should find that there
is a reasonable possibility that the prosecution’s evidence is
mistaken or false. There cannot be
a reasonable possibility that the
two versions are both correct. This is consistent with the approach
to alibi evidence laid down
by this Court more than 50 years ago in
R
v Biya
1952 (4) SA
514
(A).
At 521C-D Greenberg JA said:
“
If
there is evidence of an accused person’s presence at a place
and at a time which makes it impossible for him to have committed
the
crime charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime.”
[29]
I echo the words of the learned magistrate
in
casu,
when
he said that
“
It
is so that the accused raised an defence of an alibi, namely that he
was not there on that day and he was with a few other persons
assisting them in the transportation of furniture. But that does not
mean that there was no stage where he could have been at the
school”.
There
was also something very peculiar about the memory of the appellant.
He remembered every detail about what happened on the
day when they
were transporting furniture but had a very selective memory regarding
the times he had visited his daughter at the
boarding school. If this
alibi defence was
bona
fide
the
people that the appellant allegedly assisted with moving the
furniture would have been called to corroborate his version about
moving the furniture.
[30]
I am satisfied that the learned magistrate viewed the totality of the
evidence and concluded that the appellant's version was
not
reasonably possibly true. I am of the considered view that there is
only one test in a criminal case, which is whether the
evidence
established the guilt of the appellant was proved beyond a reasonable
doubt. In casu the guilt of the appellant was proved
beyond a
reasonable doubt. This is despite the fact that the appellant tried
very hard to dissociate himself from the complainant.
The appellant
testified that he did not know the complainant and that he had never
met her. This is not reasonably possibly true.
My view was that any
parent would be keen to know who his/her child’s roommate was.
A parent knows that this/her child’s
roommate will one way or
the other has some influence on his/her child’s life. I could
not find any reason why the appellant
made a bare denial of not
knowing who the complainant was. I could only come to a reasonable
conclusion that the reason why the
appellant denied knowing the
complainant was because he thought that this would prove his
innocence beyond a reasonable doubt.
The appellant’s testimony
had material inconsistencies which remained unexplained or got more
peculiar as he tried to explain
them. He entangled himself in
incomprehensible explanations, making it difficult for anyone to
understand as to how it was possible
for him not to have never met
the complainant. For instance the appellant said that he never met
the complainant before only to
find that the complainant testified
against him in an assault charge. I am satisfied that the court a
quo
proved
the charge of rape against the appellant beyond a reasonable doubt.
[31]
In my view the conviction is in order. There is no merit in the
appeal against the conviction. The learned magistrate correctly
convicted the appellant of rape as charged. The appellant did not
have a defence to put before the court a quo. Instead he pretended
not to have never met the complainant before. The appellant told the
court
a quo
that
he could not think of a reason why the complainant would accuse him
of rape. If the appellant knew of no reason then the complainant
had
no motive to falsely accuse him of rape.
[32]
In
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5B. Mahomed CJ stated:
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensible civilisation. Women in South Africa are
entitled to the protection of these rights. They have
a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment, to go and come from work,
and to enjoy the peace
and tranquillity of their homes without the fear, the apprehension
and the insecurity which constantly diminishes
the quality and
enjoyment of their lives. The Courts are under a duty to send a clear
message to the accused in the present case,
to other potential
rapists and to the community that the Courts are determined to
protect the equality, dignity and freedom of
all women, and they will
show no mercy to those who seek to invade those rights.”
32.1
The Supreme Court of Appeal in
S
v Malqas
2001
(1) SACR 469
(SCA) and the Constitutional Court in
S
v Dodo
2001(1)
SACR 594 (CC) had provided some guidelines to the courts with regards
to the imposition of the sentences as prescribed in
Act 105 of 1997.
In paragraph 25 in
S
v Malqas
(supra)
it
was held:
“
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.”
[33]
I echo the words of Nugent JA in
S
v Vilakazi
2009(1)
SACR 552, at paragraph 57, where he remarked that:
“
I
think it must be accepted that no woman, and least of all a child,
would be left unscathed by sexual assault, and that in this
case the
complainant must indeed have been traumatised......”
[34]
The starting point in any determination of an appropriate sentence is
to acknowledge and bring into account the scourge of
rape. In
S
v
Ncheche
[2005]
ZAGPHC 21
;
2005 (2) SACR 386
(W), the court said the following:
'Rape is an
appalling and utterly outrageous crime, gaining nothing of any worth
for the perpetrator and inflicting terrible and
horrific suffering
and outrage on the victim and her family. It threatens every woman,
and particularly the poor and vulnerable.
In our country, it occurs
far too frequently and is currently aggravated by the grave risk of
the transmission of Aids. A woman’s
body is sacrosanct and
anyone who violates it does so at his peril and our Legislature, and
the community at large, correctly expect
our courts to punish rapists
very severely. ’
[35]
With regard to sentence, it is trite that the test for dealing with
sentences on appeal is whether the sentence is vitiated
by
irregularity, misdirection or is shockingly inappropriate. Since the
imposition of an appropriate sentence involves the exercise
of a
judicial discretion, the appeal court has a limited basis to
interfere therewith
(S
v Malqas
2001(2)
SA 1222 (SCA)).
[36]
It is important for the court to maintain the delicate balance
between the triad. In
S
v
Banda and
others
1991
(2) SA 352
(BGD) at 355A-
D, the court said:
“
The
elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish
and arrive at
a judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated at
the expense of and to
the exclusion of the others. This is not merely a formula, nor a
judicial incantation, the mere stating whereof
satisfies the
requirements. What is necessary is that the Court shall consider, and
try and balance evenly, the nature and circumstances
of the offence,
the characteristics of the offender and his circumstances and the
impact of the crime on the community, its welfare
and concern. This
conception as expounded by the Courts is sound and is incompatible
with anything less.”
[37] I am not
convinced that the sentence was shockingly inappropriate. In
considering whether the sentence imposed upon the appellant
was
inappropriate, I must of course bear his personal circumstances in
mind. The personal circumstances of the appellant were that
he was 53
years old at the time of the hearing of the matter in the court a
quo, he is a married man, he has two daughters aged
20 and 22 out of
his previous marriage, his highest qualification is standard 8. He
was previously temporarily employed as a truck
driver and
subsequently he was permanently and earned a salary of R 8000.00 per
month. It was stated that his wife was unemployed
and the appellant
was the sole bread winner. In contrast to the personal circumstances
of the appellant, the aggravating factors
were that he committed a
serious crime of rape that was also premeditated. The complainant was
only 9 years old at the time of
the offense. She had not reached
puberty and she was not at the stage where she understood what sex
was all about. The appellant
robbed her of her childhood, virginity
and innocence. She endured the humiliation of being attacked in the
hostel room. The rape
incident happened in the complainant’s
hostel room where she was supposed to feel safe and protected. She
probably looked
up to the appellant as a parent and trusted him. The
experience left her traumatised and has emotionally affected her. He
was the
complainant’s roommate’s father. As a parent he
should have treated the complainant as a child not as a “punch
bag” or “sex object”. There was overwhelming
evidence regarding emotional and psychological scars which have
far
reaching consequences. The emotional scars and psychological harm are
evident for instance in the fact that the complainant
had episodes of
getting confused, disorientated and traumatized. She refused to be
medically examined which was a sign of the emotional
and mental
impact the rape had on her.
[38]
The appellant has been convicted of a very serious offence and
deserves a sentence of direct imprisonment. However in the assessment
of an appropriate sentence, the court must have regard to the main
purpose of punishment which is deterrence, preventive, reformative
and retribution (see
R
v Karq
1961
(1) SA 231
(A) at 236A - B. Having regard to all the relevant
factors, I am of the considered view that a sentence of 15 years’
imprisonment
was appropriate under the circumstances.
[39]
Taking into consideration all the circumstances and factors
pertaining to sentence, including but not limited to the seriousness
of the offence, the interests of the community, the personal
circumstances of the appellant, I am in all circumstances satisfied
that this court should not consider the sentencing of the court a quo
afresh. There is no merit in the appeal against the sentence.
In my
view there was no material misdirection by the court a
quo.
In
addition the appellant did not rely on any misdirections by the trial
court but that the sentence is shockingly high. It is my
view that
the court a quo exercised its discretion judicially and properly.
There is nothing that this court can add to the reasoning
or the
findings of the court a quo. I am of the view that there was no need
to tamper with the sentence of the court a
quo.
[40] In the result
the appeal against the conviction and sentence should fail.
ORDER
[41]
The conviction and sentence imposed by the court a
quo
are
confirmed.
E. K. TSATSI, AJ
I agree.
S. EBRAHIM, J
On behalf of the
appellant: Mr. K. Pretorius
Instructed by:
Bloemfontein Justice
Centre BLOEMFONTEIN
On behalf of
respondent: Adv. C.A. van Der Merwe
Instructed by:
Office of the
Director of Public Prosecutions BLOEMFONTEIN