About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 68
|
|
Hlapho v S (A292/2010) [2015] ZAFSHC 68 (19 March 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal number:
A292/2010
DATE: 19 MARCH 2015
In the Appeal of:
SAMPI S HLAPHO
And
THE STATE
CORAM: RAMPAI, J et NAIDOO, J
JUDGMENT BY: RAMPAI, J
HEARD ON: 9 FEBRUARY 2015
DELIVERED ON: 19 MARCH 2015
[1] These are appeal proceedings. The
appellant appeals against the conviction and sentence. He was
convicted on a charge of rape
and sentenced to life imprisonment.
The respondent opposes the appeal.
[2] On Sunday the 2 August 2009 an
incident took place at Marabastad, Kroonstad. The scene of the
incident was near a brickyard
in the vicinity of the old cemetery on
the outskirts of Seeisoville. The appellant and the victim were
found together on the scene
at or about 15:30.
[3] Following that incident the
appellant was arrested on the same day. He was subsequently charged
with rape. The respondent
alleged that he, in contraventions of
section 3 Sexual Offences and Related Matters Act No 32 of 2007 read
with specified statutory
provisions, unlawfully and intentionally
committed an act of sexual penetration with Ms M…….
R………
C……, a 16 year old teenage
girl born on the 9 March 1993 without her consent.
[4] The appellant was released on
R500,00 bail on 11 November 2009. His trial started in Kroonstad
Regional Court on 4 May 2010.
He pleaded not guilty to the charge.
He explained in terms of
section 115
of the
Criminal Procedure Act No
51 of 1977
that he was detoxing by way of self-induced vomiting.
While he was busy doing so, the complainant approached him; that she
asked
him to give her some money to buy snuff; and that he gave her
some money. However, he denied the allegation that he sexually
penetrated
her in any manner whatsoever.
[5] The appellant admitted in terms of
section 220 of the Criminal of Procedure Act No 51 of 1977 that the
complainant was a mentally
impaired woman; that medical form J88
concerned the complainant and that its contents were true and
correct. The medical report
was then handed up as exhibit “a”.
Moreover, the defence also admitted the mental evaluation report in
respect of
the complainant. Dr L M Mosia described the condition of
the complainant as severe mental retardation and found that she
suffered
from severe mental incapacity – exhibit “b”.
[6] Two witnesses testified for the
respondent, namely: Mr P… L… C…., the
complainant’s brother and Ms
M….. C…. the
complainant’s mother.
In a nutshell the brother testified
that he saw the appellant and the complainant having sexual
intercourse under a tree in the
veld at Marabastad on Sunday 2 August
2009 at ± or about 15:30. The appellant told him then and
there that the complainant
was his girlfriend. He had no idea as to
how the complainant ended up on the scene.
The mother testified that the appellant
admitted that he had sexual intercourse with the complainant but
boastfully told her that
he would win the case if she laid a criminal
charge against him.
[7] Both witnesses testified that the
complainant was obviously a person who was mentally retarded.
According to the mother, the
appellant knew the complainant and was
aware of her mental disability. From the scene the appellant and the
complainant went to
V….’s, the complainant’s aunt.
They were instructed to go there by the first state witness, Mr P L
C………..
[8] The appellant also testified in his
defence. His evidence was that he went out to buy maize meal. On
his way back he felt
nausea. He went out of the way and knelt down
in the veld where he self-induced vomiting. The complainant appeared
on the scene.
She asked him to give her some money because she
wanted to buy snuff. He gave her money.
[9] Soon after giving her the money,
her brother appeared on the scene. When she saw her brother she
walked away. Her brother
followed her but he remained behind.
However, her brother turned back to him, and asked him to go home
with him. He agreed.
He denied the allegation that he had sexual
intercourse with the complainant. During cross-examination he
replied that there was
a conspiracy to falsely accuse him of rape.
The complainant’s mother was behind it. At the end of the
trial on the 4 May
2010 appellant was convicted as charged.
[10] There rests no onus on the
appellant to prove his innocence. The respondent is expected to
prove the guilt of the appellant
as an accused beyond reasonable
doubt. (S v Mhlongo
1991 (2) SACR 207
(A) at 210c.)
[11] The version of the accused must
only be reasonably true. If it is, then he is entitled to his
acquittal. (Rex v Difford
1937 AD 265
on 277.)
[12] In the instant appeal there was no
submission made by counsel for the appellant about any irregularity
or misdirection committed
by the regional magistrate who tried the
appellant. That being the case, we are bound by the credibility
findings of the trial
court since I am convinced that such findings
were correct. (S v Oliver
1995 (2) SA 267
(A).)
[13] The trial court found, among
others, that Mr C…… was an impressive single witness
whose evidence was credible
and satisfactory. The trial court gave
sound reasons of its finding.
The trial court found that the evidence
of the appellant was not reasonably possible and gave sound reasons
why it had to reject
his version.
[14] The complainant’s brother
saw a man and a woman having sexual intercourse. According to his
observation, the copulation
appeared normal. There was nothing to
suggest that the one was raping the other. The sexual movements of
the woman created the
impression that she was a willing party to the
whole sexual act. The witness observed no form of resistance from
the woman. When
the mating couple saw him, they stood up and dressed
up. The woman, who appeared emotionally normal, must have recognised
the
intruder as her brother. However, she did not report to him that
the man had raped her. She did not yell or cry.
[15] Because the man was caught
red-handed with his pants down, he told the witness that the woman
was his girlfriend. The woman
did not deny the man’s claim.
It would appear that she embraced the appellant’s advances.
Given all these facts,
I am inclined to find that factual consent
appeared to have been given by the complainant to the appellant to
sexually penetrate
her. However, it does not end there. That
completes the first leg of the inquiry.
[16] The second leg of the inquiry
revolves around a legal question. Since there was factual consent,
we now have to determine
the legal efficacy thereof in the light of
the complainant’s mental condition. On the strength of the
evidence before us,
the complainant’s factual consent was
rendered null and void by her severe mental retardation. Since she
was legally incapable
to give consent – there was no legal
consent to legitimise her sexual penetration by the appellant. Lack
of legal consent
overrides factual consent – AC v S
[2015] JOL
32785
(GP).
[17] The trial court found that there
was sufficient evidence that the appellant had sexual intercourse
with the complainant notwithstanding
his denial. It also found that
the complainant was so severely mentally retarded that she could not
have consented to sexual intercourse
with the appellant. I have
already found that although she factually consented she legally did
not.
[18] I am in respectful agreement with
the trial magistrate in respect of all those findings. In this
regards I am fortified by
the submission made by counsel for the
appellant. At par 3.5 of the appellants heads of argument counsel
made the following concession:
“Gesien in die lig van die
getuienis soos gelewer asook die geloofwaardigheidsbevinding wat
gemaak is en die stawing wat te
vinde is vir die weergawe van die
Staatsgetuies, kan skrywer egter geen verdere submissie maak waarom
die Landdros fouteer het
in sy bevinding nie.”
[19] During the course of oral argument
counsel for the appellant affirmed the aforesaid concession. I am
indebted to counsel for
his responsible stance. The concession was
correctly made. I would, therefore, dismiss the appeal as regards
conviction.
[20] On 4 May 2010 the appellant was
sentenced to life imprisonment in terms of section 51 Act No 105 of
1977. He was aggrieved
by the sentence as well. Sitting as we are
in an appellate mode, we can only interfere with the sentence imposed
on the appellant
if we are convinced that the trial court committed a
misdirection or that the sentence was shockingly inappropriate.
S v Pieters
1987 (3) SA 717
(A) at 728B
– C.
S v Mothube
1977 (3) SA 823
(A) at
830D.
S v Pillay
1977 (1) SA 531
(A) at 535E
– F.
[21] In sentencing the appellant the
trial court took into account that he was 59 years of age; that he
was a married man; that
his four children were economically
independent; that he was unemployed; that he was suffering a back
injury; that he was receiving
social pension in the form of a
disability grant; and that he did not inflict bodily injuries on the
victim. Those then were the
mitigating factors the trial court
considered in profiling the appellant.
[22] In sentencing the appellant the
trial court also took into account the following aggravating factors:
22.1 that rape is a serious crime;
22.2 that the crime of rape was very
rife;
22.3 that the complainant was a young
teenage girl, 16 years of age;
22.4 that her physique was tiny; and
22.5 that she was mentally retarded.
[23] Given those mitigating factors on
the one hand and aggravating factors on the other hand, the question
is whether substantial
and compelling circumstances exist to justify
deviation from the prescribed minimum sentence of life imprisonment.
[24] The trial court came to the
conclusion that no deviation from the prescribed minimum sentence of
life imprisonment was justified.
“Uit u persoonlike omstandighede
soos wat aan my voorgehou is ek tevrede is daar eintlik niks wat
aangemerk kan word as wesenlik
en dwingend van aard nie, u is ‘n
bejaarde persoon, maar aan die anderkant verwag ‘n mens darem
weer van ‘n bejaarde
persoon dat indien hy op daardie ouderdom
nog sulke drange het dat hy liewer sy drange by sy huis sal bevredig
en nie kinders wat
weerloos in die straat loop sal gryp om hulle an
sy drange op te bevredig nie. Verder is ek tevrede is (sic) daar
geen ander aspek
wat ek kan vind wesenlik en dwingend van aard is nie
en is ek dan tevrede dat die gepaste straf onder hierdie
omstandighede een
is van (sic) in terme artikel 276(1)(b) word u
gevonnis to LEWENSLANGE GEVANGENISSTRAF.”
[25] On behalf of the appellant Mr Van
der Merwe submitted that the trial magistrate erred in finding that
there were no substantial
and compelling circumstances to justify the
imposition of a sentence less than the prescribed minimum sentence of
life imprisonment.
Counsel submitted that in those circumstances the
punishment of life imprisonment was shockingly inappropriate.
Accordingly he
urged us to uphold the appeal – S v GN
2010 (1)
SACR 93
(T).
[26] Ms Giorgi, counsel for the
respondent, was in agreement. The respondent did not support the
sentence. She too submitted that
the sentence of life imprisonment,
in those circumstances, was shockingly severe and thus inappropriate
– S v Pieters supra.
[27] I am persuaded that the trial
court erred by finding that there were no substantial and compelling
circumstances to warrant
departure from the prescribed minimum
sentence of life imprisonment.
I am mindful of the principle that the
sentencing of an offender is the prerogative of a trial court –
S v Kgosimore
1999 (2) SACR 238
(SCA). However, where the trial
court has over-emphasised the aggravating factors at the expense of
the mitigating factors, appellate
interference is warranted in order
to restore the balancing act. In this instance, I am persuaded that
punishment does not fit
the criminal - S v Zin
1969 (2) SA 735
AD.
[28] The aggravating factors, serious
though they are, do not exceed the mitigating factors by a very wide
margin. It is disgraceful
for a man to rape an adult woman. It is
reprehensible for a man to rape a teenage girl knowing her
unfortunate condition. It
is appalling for a man to rape a mentally
retarded teenage girl. Notwithstanding the appellant’s
appalling conduct, I am
of the view that he was not adequately
individualised. I proceed to tabulate facts that, in my view,
militate against the imposition
of the ultimate and severest form of
punishment imposed on him.
[29] The following factors have to be
accentuated:
29.1 The appellant was born on 15
September 1950. He was therefore almost 59 years of age at the time
he raped the complainant;
29.2 He had a clean criminal record.
This was remarkable bearing in mind his advanced senior age. This
strongly mitigating factor
was apparently not considered.
29.3 The complainant sustained no
serious injury, except for a small tear of her vagina. This was so
because the appellant did
not use violent means to achieve his
criminal objective.
29.4 The instant case is not the worst
of the rape cases. Quite often rape victims are not only sexually
violated but also violently
brutalised.
29.5 The appellant does not enjoy good
health. It appears that he was involved in an accident in which he
sustained a back injury
so severe that he can no longer fend for
himself.
29.6 He now lives on a disability grant
from the department of social welfare.
[30] The aforesaid factors cumulatively
considered together with the appellant’s personal circumstances
as set out in paragraph
21 above, in my view constitute substantial
and compelling circumstances. With respect, the trial court erred in
finding otherwise.
As regards sentence I am therefore inclined to
interfere. Both counsel were ad idem that a sentence of 20 years
imprisonment
would be an appropriate punishment for the appellant. I
am inclined to agree. There was substance in those submissions.
[31] Accordingly I make the following
order:
31.1 The appeal fails as regards
conviction. The conviction is confirmed.
31.2 The appeal succeeds as regards
sentence. The sentence of life imprisonment is set aside and it is
substituted with the sentence
as set out below.
31.3 The appellant is sentenced to a
custodial sentence of 20 years imprisonment.
31.4 The substituted sentence must be
deemed to have been imposed on 4 May 2010.
M. H. RAMPAI, AJP
I concur.
S. NAIDOO, J
On behalf of the appellant: Adv. S.
Kruger
Instructed by: Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the respondent: Adv. S.
Giorgi
Instructed by: The Director: Public
Prosecutions
BLOEMFONTEIN