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 167
|
|
Mafirika v S (A96/2015) [2015] ZAFSHC 167 (3 September 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
No.: A96/2015
In
the appeal between:
LEKULA
JOSEPH
MAFIRIKA
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI,
J
et
MURRAY, AJ
JUDGEMENT:
RAMPAI,
J
HEARD
ON:
24
AUGUST 2015
DELIVERED
ON:
3
SEPTEMBER 2015
[1]
These were appeal proceedings. The appellant was tried in the
Welkom Regional Court where he was convicted on two charges.
Following his conviction he was sentenced to an effective custodial
term of 12 years imprisonment. He was aggrieved by both.
He came to us on appeal with the leave of the court
a
quo
.
[2]
An incident took place at [….] Section [....] on Saturday, 18
January 2014. Two men broke into that house in the
early hours
of the morning. They found the complainant sleeping in her
bedroom. They attacked her, threatened to harm
her, overpowered
her, raped her and robbed her of her belongings. They then
vanished from the scene.
[3]
The appellant was subsequently arrested in connection with the
incident. Two charges were levelled against him.
The
first charge was that he unlawfully and intentionally committed an
act of sexual penetration with the complainant, Ms N. A.
M., 53 years
of age by penetrating her vagina with his penis without her consent.
[4]
The second charge preferred against the appellant was one of
housebreaking with intent to rob and robbery with aggravating
circumstances. The state alleged that he robbed the aforesaid
complainant of her DVD player, worth R200,00, amplifier worth
R300
and a Samsung cellphone worth R399,00. The total value of her
loss, was therefore, R899,00. Both of those offences
were
committed at the same place and time as mentioned in paragraph 2
above.
[5]
The trial commenced on 8 December 2014. Mr Sesele presided, Mr
Radebe prosecuted and Mr Van Wyk defended. The appellant
pleaded not guilty to both charges. He did not disclose the
basis of his plea.
[6]
Notwithstanding his plea the appellant was found guilty as charged on
19 March 2015. The next day, on 20 March 2015, he
was sentenced
to 8 years imprisonment in respect of the first charge and 12 years
imprisonment in respect of the second charge.
The regional
magistrate directed in terms of section 280(2) that the two sentences
should run concurrently.
[7]
The appellant was aggrieved by the conviction as well as the
sentence. He immediately applied for leave to appeal against
both. Still on 20 March 2015 he was granted leave to appeal
against the conviction and sentence.
[8]
As regards the conviction the ground of the appellant’s appeal
were set out in paragraph 2 of the notice of appeal which
was filed
on 25 March 2015. The thrust of all these was that the court
a
quo
erred in finding that the appellant’s version was beyond
reasonable doubt false and that the victim, a single witness, who
had
made conflicting statements was an impressive witness.
[9]
The issue in this appeal revolved around the identity of the
perpetrator(s) of the two offences.
[10]
Mr Makhene, counsel for the appellant, argued that there was a
materially inconsistent discord between the victim’s subsequent
testimony and her previous witness statement. Counsel
accordingly submitted that the court
a
quo
erred in finding that the victim’s evidence established, beyond
reasonable doubt, the identity of the appellant as one of
the
perpetrators. Mr Makhene argued that since the victim knew the
appellant and since she claimed that he was one of the
two
perpetrators, she should have named him in her witness statement.
He stressed that the appellant’s first name Lekula,
was “an
important fact which goes directly to the root of the dispute on
identity”. In view of the victim’s
previous
statement which was inconsistent with her testimony, the court
a
quo
erred in holding that the victim’s evidence was truthful given
the circumstances of the material omission in her previous
statement.
[11]
Mr Strauss, counsel for the respondent, differed. He argued
that the omission of the appellant’s first name in
the victim’s
police statement did not
per
se
render
her testimony untrue. He submitted that the mere omission did
not justify the conclusion that her testimony and her
statement were
not reconcilable.
“
Daar
word groot gewag gemaak van haar getuievereklaring en getuienis in
die hof dat dit nie versoenbaar is nie.”
So
contended Mr Strauss.
Mr
Strauss further submitted that the court
a
quo
did not err in accepting the victim’s testimony as credibly
honest evidence.
[12]
The version of the procesution was narrated by the following
witnesses:
12.1 Ms N A M. -
the complainant;
12.2 Sr M T Ceba -
the forensic nurse;
12.3 Ms A Ntodi
– constable;
12.4 Mr M M Kareli
- lieutenant;
12.5 Mr B Mahlaku -
constable and investigating officer;
12.6
Ms L van Rooyen – warrant officer.
[13]
The testimony of the victim was under serious attack on appeal.
“
The
criticism levelled against the complainant’s evidence is that
in her statement which was taken on the 18/01/2014 she referred
to
two unknown persons who entered her bedroom. She did not
mention any name nor any acquaintance with any one of those persons.
In court however, and for the first time, she testified that one of
them was the appellant whom she had known before the incident.
The submission is that the court, in
the circumstances where there is a previous inconsistent statement,
erred in holding that her
evidence was truthful and reliable in all
material respects when she omitted to mention such an important fact
which goes directly
to the root of the dispute on identity.”
So
argued Mr Makhene.
[14]
The appellant insinuated, through the aforegoing line of argument,
that the victim was not a credible witness. He contended
that
her failure to mention the name of the appellant in her police
statement rendered her testimony highly suspect. The
victim
made a statement concerning the incident on 18 January 2014 less than
six hours after the incident. The statement
was attested by one
Ms Mathapelo Ramokuane at Odendaalsrus at 09:00 – see exhibit
“b”. Paragraph 3 thereof
reads:
“
At
about 3:45 while I was sleeping in my bedroom I heard my bedroom open
and when I woke up I saw two unknown African males entering
my
bedroom.”
[15]
In her direct evidence she testified that two people X and Y entered
her bedroom – the one was unmasked (X), the other
was masked
(Y). At the time she first saw the intruders she could not
instantly figure out who they were because she had
just woken up and
she was in a state of shock. At that stage therefore, the
intruders appeared to be unknown to her.
But then X, the
unmasked intruder, became aggressive. He charged at her.
They wrestled near the window. At one
stage during the course
of the wrestling X was facing towards the window. With the aid
of the light generated by a high mast
community lamp she positively
identified X as “Lekula”, her son’s friend.
[16]
Much of the appellant’s criticism of the victim centred around
the victim’s averment that “two unknown people”
entered her bedroom. The appellant narrowly considered that
phrase in isolation. However, once paragraph 3, exhibit
“b”
is broadly read in a proper context of the complainant’s
testimony as a whole, what appeared, at first glance,
to be a great
inconsistency falls apart. In my view there was no
inconsistency between the victim’s previous statement
and her
subsequent testimony which rendered her evidence incredible.
This disposes of the appellant’s first bone of
contention.
[17]
The appellant’s second bone of contention was crafted as
follows at paragraph 8 of the appellant’s heads of argument:
“
The
second bone of contention is why, when she knew the appellant by name
and also knew where he was staying, did she not take the
police to
his address that same morning? We submit that, this is what
would have been expected of her if she was sure that
the appellant is
the person who raped her in her own house.”
So
submitted Mr Makhene. I shall revert to the victim’s
meeting with the police later. Let me first deal with
her
encounter with the intruders before the arrival of the police on the
scene.
[18]
The general insinuation was that the victim did not really know the
appellant as well as she claimed she did. The contention
was
that if she did, she would have alerted the unmasked X before he
raped her that she recognised him and that his name was Lekula.
That was the first critique.
[19]
The victim’s evidence was that she and the unmasked intruder
wrestled. She yelled to alert her neighbours that
she was in
trouble but no-one came to her rescue. The unmasked intruder
slapped her in the face. She continued to yell.
He tried
to gag her. She bit his finger. His masked companion drew
out a knife, approached her brandishing a knife
and commanded her to
surrender. She feared for her life. Then X, angrily
slapped her again. Her fear intensified.
All her
resistance was broken. She gave up.
[20]
The following exchange between Mr Radebe, the prosecutor, and Ms M.,
the complainant, as recorded on page 13: 04-10 is important:
“
Why
did you not call him by his name to show him that you know him? --- I
was afraid Your Worship of this knife.
But
why did you say Lekula what are you doing, why were you afraid,
telling him that you know him, Lekula what are you doing? ---
Your
Worship I know him, I know him and I am scared of him, he was going
to stab me, if even I could call his name he was going
to stab me.”
[21]
The aforesaid evidence concerned the complainant’s fear before
she was raped. But it did not end there. Her
fear
continued throughout the entire rape episode and beyond. She
explained her fear after the rape during the further exchange
between
her and the prosecutor as follows:
“
PROSECUTOR:
Yes? --- After that then the accused person requested a knife from
his friend Your Worship, saying toi his friend give me
a knife.
Yes? --- I then asked him Your Worship
crying by then Your Worship saying to him
Ntate
do
not kill me
for the sake of my children.
Yes? --- Then from there his friend
did not want him to kill me, he said
this lady I want to kill her
because she saw me
.
Yes”
--- Then his friend Your Worship did not agree to handover the knife
to the accused person. They then went to the
kitchen.”
[22]
Upon my integrated reading of the two passages quoted above, it
became quite clear to me that the complainant did not call
X, the
unmasked intruder, by his real name, “Lekula”. She
did not want him to realise that she recognised him
and that she knew
him by the name Lekula. She was fearful that he would kill her
if he became aware that she identified him
by his name. Her
explanation makes perfect sense to me. She did not want to sign
her own death warrant by calling X
by his real name. The trial
magistrate appreciated the significance of the complainant’s
explanation.
[23]
In my view her failure to make X aware that she knew him by name did
not adversely affect her credibility in any manner whatsoever.
This then disposes of the appellant’s first critique of the
complainant’s omission.
[24]
The appellant’s second critique on the basis of which he also
attacked the complainant’s credibility, concerned
her first
report of the rape incident to Mrs M., her neighbour. Mr Van
Wyk, the trial defense attorney, pointed out to the
complainant that
there was no mention of the name Lekula as one of the suspects in the
neighbour’s statement. It was
put to the complainant that
she reported to her neighbour soon after the incident that two
unknown men raped her. She answered
the question by saying:
“
I
said I was raped by Lekula”.
[25]
The neighbour’s statement was not exhibited in the court
a
quo
during trial. However, it can be accepted that the name Lekula
appeared nowhere in her neighbour’s statement.
It can
also be accepted that the disputed phrase “two unknown men”
appears somewhere in her statement. If those
facts were
incorrect the prosecutor would have objected. He did not.
It was an undisputed fact that the complainant
reported to her
neighbour that she was raped and that there were two men involved.
The question before us was whether she
specifically mentioned to her
neighbour that one of the two men was Lekula as she testified or
whether she reported that two unknown
men raped her as her neighbour
stated.
[26]
The neighbour was not called to testify. The correctness of her
statement was in no way tested. The complainant
testified on
oath. She denied the allegation attributed to her by the
neighbour to the effect that she told her that she
was raped by two
unknown men. But she maintained that she was raped by Lekula
although there were two men involved.
Obviously she did not
appreciate that the masked intruder also raped her by inserting his
fingers in her vagina. The complainant’s
testimony and
the neighbour’s statement were indeed inconsistent in that
respect. Since the neighbour did not testify
the testimony of
the complainant must prevail. In the circumstances, the
inconsistency complained of in no way affected the
complainant’s
credibility.
[27]
The third front from which the appellants launched an attack on the
complainant’s credibility concerned her own statement.
It
was common cause that the name Lekula appeared nowhere in the
complainant’s witness statement – see exhibit “b”.
It was argued on behalf of the appellant, on appeal as well as at the
trial below, that the omission was indicative of her false
accusation
that the appellant was involved in the incident. She answered
the question by saying that: Lekula was truly
involved; that
she was not falsely accusing him; that she told the police so; that
the police who interviewed her advised her not
to mention the name of
the suspect because, as they said, she could not have clearly seen
him and because they claimed that she
did not have any proof that
Lekula was involved.
[28]
She was pressed to concede that she did not, on the day of the
incident, tell the police that Lekula was on the scene, but
she did
not. She was then asked whether she wanted the court to believe
that she was so ill-advised by the police, she answered:
“…
they (the police)
are the ones who write (sic) down the statements.”
Implicit
in that answer was an assertion that, given the opportunity to write
down her statement on her own, she would not have
omitted to mention
the name of Lekula.
[29]
Mr Makhene, submitted that the complainant’s answers in
connection with the omission of the name Lekula in her statement
were
not satisfactory at all. It was improbable, counsel contended,
that the police would ill-advise a prime victim as the
complainant
alleged they did. Well, the complainant was steadfast that she
was so advised by the police. The police
who were on the scene,
whoever they were, were not called by the appellant’s legal
representative to refute the victim’s
testimony.
Moreover, the state called the investigating officer,
Detective/Constable Mahlaku. The matter was not taken
up with
him by the defence. He might have shed some light on the
matter. In the light of all these I am not persuaded
that the
complainant’s evidence was untrue. I accept that she gave
a credible account of what transpired between her
and the police on
18 January 2014.
[30]
It is well to remind ourselves about the following apposite comments:
“
Polisieverklarings
is dikwels onvolledig, soms selfs ten aansien van belangrike feite.
Die omstandighede waaronder en die besondere
persoon aan wie so 'n
verklaring gemaak was, is dikwels vir die onvolledigheid van sulke
verklarings verantwoordelik.”
S
v Mlumbi and Another
1991 (1) SACR 235
(A) at 248(b) per M T Steyn JA.
See
also
S
v Mafalidso & Andere
2003
(1) SACR 583
(SCA).
[31]
In pretty much a similar vein the views of Horn AJ concerning the
purpose of a witness statement were summarised as follows
in the
headnote of
S
v Bruiners en Ander
1998 (2) SACR 432
at 433c-d:
“
Die
doel van 'n getuieverklaring was om die besonderhede van 'n misdaad
te bekom sodat daar besluit kon word of die beskuldigde
vervolg moes
word. Dit was nie die doel van so 'n verklaring om die getuie se
getuienis in die hof vooruit te loop nie, en dit
was vergesog om van
'n getuie te verwag om in so 'n verklaring presies dieselfde weergawe
te verskaf as wat hy in die ope hof sou
getuig.”
[32]
The complainant was a single witness as regards the incident itself.
The court
a
quo
was alive to the salient principle that the evidence of a single
witness must be treated with caution. The same principle
applies to the evidence pertaining to the identity of an alleged
perpetrator. Equally important is the principle that the
exercise of caution should not be allowed to displace the exercise of
common sense –
S
v Sauls
1981 (3) SA 172
(A) at 180E-H. On appeal Mr Makhene conceded
that the court
a
quo
was mindful of this principle and that it applied the principle
correctly to the facts of this case. Therefore, the appellant’s
reliance on this ground can be taken as abandoned.
[33]
Now I revert to the complainant’s conduct at the time she first
met the police. There was no evidence as to the
circumstances
in which the appellant was arrested. The complainant’s
evidence was that she knew where the appellant
lived. It was
contended that her evidence was doubtful seeing that she did not, on
18 January 2015, immediately take the
police to the appellant’s
place of residence. Her answer was that she did not because the
police did not ask her to
do so. In my view it could not be
seriously argued that her explanation was unreasonable. She
could not have been expected
to dictate the pace of the investigation
to the police. It was for the investigating officer to decide
when to go out in
search of the suspects known or unknown.
There was no substance in the critique levelled against her.
This contention
also failed to impress me.
[34]
The appellant was arrested in connection with the complainant’s
rape. Although we did not know the circumstances
relative to
his arrest we can reasonably deduce that he was arrested on the
strength of the information the investigating officer
obtained from
the victim. The core of such information would certainly have
included, among others, the appellant’s
name and place of
residence. Common sense dictates that this should be accepted –
Sauls
supra
.
If I am correct in drawing such an inference, then the appellant’s
argument that the complainant mentioned his name
for the very first
time in court when she testified was certainly incorrect.
[35]
I am quite satisfied that the victim was a truthful witness.
For instance she testified that before the wrestling or
the physical
attack started in her bedroom she did not recognise any of the
intruders; that Y and not X was armed with a knife;
that Y and not X
actually robbed her of her belongings. She did not show any
vindictive inclination to exaggerate the actions
of X, the unmasked
intruder. In my view she was an honest witness. Her
testimony was not tarnished by any false blemishes.
Her
evidence as a whole was credible in all material respects.
However, it does not end with her credibility, more is required
in
order to avoid the danger of an innocent mistake.
[36]
In
S v Mthetwa
1972 (3) SA 766
(A) at 768A Holmes JA
said evidence of identity is approached by the courts with some
caution on account of the fallibility of
human faculties of
observation.
Something
more than the mere assertion by the witness that she has correctly
identified the appellant as one of the culprits is
generally required
if the inherent risk or danger of error is to be guarded against.
There must be no reasonable doubt that
the complainant as the
identifying witness is not mistaken –
S
v Sithole & Others
1999 (1) SACR 585
(W) at 591e-f.
[37]
Now I turn to examine the evidence to determine whether the
complainant’s evidence was reliable or not. As regards
the unfavourable features of the victim’s observation, the
following:
The
incident took place during night-time. She was ill. She
was still fast asleep seconds before her bedroom door was
opened by
the intruders. There was no burning lamp in her bedroom at the
time. She woke up and saw two men in her bedroom.
She
noticed that one was masked. She realised that she was in
danger. She was shocked. She started yelling.
She
was attacked, tossed around, assaulted and threatened with a knife.
[38]
As regards the favourable features of her observation the following:
The
front window of her bedroom had thin and transparent curtain with a
lace. Her premises were illuminated by two high mast
lamps.
The front of her house was illuminated by the lamp situated at K2 and
the back by the lamp situated at K5, the section
or neighbourhood
where she lived. The light of K2 lamp permeated her bedroom
through the front window. With the aid
of such light it was
possible for her to identify an acquaintance in her bedroom even if
her bedroom lamp was off. She knew
the appellant by sight and
by name. He was her son’s friend. The appellant
knew her as M.’s mother.
The appellant knew where she
lived. He lived in the same neighbourhood. He was in that
neighbourhood during the night
between Friday 17 January 2014 and
Saturday 18 January 2014.
[39]
The victim put up some fight before her resistance was broken by
physical assault and threat to stab her to death. During
the
ensuing brawl between her and X, X faced the window. At that
critical moment she recognised that X, the unmasked and
aggressive
intruder, was her son’s friend, Lekula. During the brawl
she bit Lekula’s finger so hard that he bled.
His
blood-stained her nightdress and her pillow. Among others, she
also told the forensic nurse about the injury she inflicted
on her
rapist. Moreover, she handed her blood-stained nightdress to
the forensic nurse. See paragraph 5 exhibit “c”,
a
medical report completed by Sr Ceba, the forensic nurse.
[40]
In my view, the favourable aspects of the complainant’s
observation eclipsed the unfavourable aspects thereof by far.
The evidence of the victim was not merely credible but was also,
beyond reasonable doubt, reliable in all material respects.
The
trial magistrate noted, after the physical examination, that the
appellant’s right middle finger had a visible v-shape
scar.
The objective evidence of the appellant’s impaired finger
materially corroborated the victim’s evidence
that the
appellant was indeed one of the intruders who raped her. Her
reliable observation of the unmasked intruder led to
her correct
proper identification of the appellant as one of the culprits.
[41]
By 08:00 on the very same day of the incident, the appellant was on
his way out of Kutloanong where the victim was raped about
4 hours
earlier. He went to Welkom. That was his evidence.
His early departure from the neighbourhood tended
to create the
suspicion that he was distancing himself from the scene. The
guilty are afraid – so goes the saying.
[42]
The appellant was not a truthful witness. The complainant’s
evidence was that the appellant was her son’s
friend. Her
averment was never challenged during cross-examination.
Contrary to all expectations, the appellant testified
but denied that
the victim’s son was his friend. He claimed that his
brother and the victim’s son were friends.
His belated
denial was false. He desperately tried to distance himself from
the victim. His explanation of how he sustained
injury to his
right middle finger was bedevilled with vagueness. He was very
reluctant to admit that the victim knew him
by the name Lekula.
The following exchange between him and his attorney demonstrated just
how jittery and evasive he was:
Ø
“
She
further testified that she knows you as Lekula ---
No
,
I never known that.
Ø
Are
you known as Lekula sir? --- Yes, my name is Lekula.
Ø
Now
how does she know your name sir” ---
You
mean my name
?
Ø
Yes?
--- She got it from her child.”
He
found it difficult to admit that the complainant knew him by name.
[43]
During cross-examination the appellant admitted that the victim knew
him by name; that he knew where she lived; that she lived
in the
neighbourhood called Section K5 and that he also lived in the same
neighbourhood, something he had earlier denied.
He claimed that
the victim had the motive to falsely accuse him. Called upon to
explain the alleged motive, he guessed that
“maybe” she
was influenced by certain boys hostile to him to falsely incriminate
him. The appellant tried very
hard, in more ways than one, to
distance himself from the victim whose evidence was that she had
known him since the days of his
childhood. He denied her
evidence. The appellant was 29 years of age at the time he was
apprehended. Therefore,
she must have known him for many years
– no less than 11 years, conservatively estimating. It
would appear therefore,
that her prior knowledge of the appellant
greatly strengthened the contention that she correctly identified him
in her bedroom.
[44]
The aforesaid various aspects of criticism against the appellant
prompted me to describe the appellant as an extremely unsatisfactory
witness. The description flowed from the general impression he
created about himself. His false defence of alibi coupled
with
various untrue aspects of his testimony bolstered the contention that
the victim, who knew the appellant by sight and by name,
could not
have made a mistake as to the identity of the unmasked man who broke
into her house on the day in question. I am
satisfied that the
victim made proper observation of the man and reliably identified him
notwithstanding certain unfavourable features
of her observation
already alluded to. I am persuaded that there was no mistaken
or false incrimination in this instance.
[45]
In the circumstances, I am not persuaded that the court
a
quo
committed any material misdirection which rendered the judgment
appealable. In the absence of such misdirection no appellate
interference is warranted. The conclusion reached by the
regional magistrate is one which I, on appeal, cannot hold to be
wrong. I would, therefore, confirm the conviction of the
appellant on the strength of the credible and reliable evidence
of
the complainant.
[46]
As regards sentence, I shall be brief. In sentencing the
appellant the following personal circumstances of the appellant
had
to be taken into account:
·
He
was 30 years of age at the time he was sentenced and 29 years of age
at the time he committed these offences;
·
He
had received formal education up to grade 5;
·
He
was not gainfully employed;
·
He
did casual jobs at times and earned R50 per day;
·
He
was never married and he had no dependent children of his own save
for his 3 minor siblings;
·
His
parents were no longer alive.
[47]
In sentencing the appellant the following aggravating circumstances
had to be taken into account:
·
The
victim was raped in her own house;
·
The
appellant knew the victim relatively well;
·
The
victim was his friend’s mother;
·
The
adverse emotional impact of rape on the victim;
·
The
nature and gravity of the crime of rape coupled with housebreaking
and armed robbery;
·
The
appellant did not act alone;
·
The
appellant’s companion also raped the victim;
·
The
two men were armed with a knife;
·
The
appellant assaulted the victim and threatened to stab her to death;
·
The
victim was robbed of her belongings.
[48]
The appellant was treated as a first offender since he had kept a
clean criminal record for a period longer than 10 years immediately
preceding the incident we are here dealing with. The court
a
quo
reckoned that those circumstances substantially compelled deviation
from the prescribed minimum sentence. I have reservations
about
that even though we cannot interfere with that finding.
[49]
The evidence revealed that the appellant was not alone in it.
He raped the victim. His companion supported him.
He
produced a knife with which the victim was threatened and her
resistance broken. When the appellant was done his fried
raped
the victim - section 3 Sexual Offences and Related Matter Act 32 of
2007. Therefore, it will be readily appreciated
that the victim
was raped by more than one person. The combined actions of the
two men brought their actions squarely within
the purview of rape
(a)(ii) at least – see Part I of Schedule 2 read with section
51(2)(a). The prescribed minimum
sentence in those
circumstances is life.
[50]
The question is: Was the accused accordingly informed? The
record showed that neither the written indictment nor the
trial court
specifically warned the appellant about the correct sentencing regime
applicable to him. It is unwise for the
court to depend on an
accused person’s legal representative to explain those
provisions. The appellant can count himself
lucky. He was
charged and tried as if he had committed rape as contemplated in Part
III, Schedule 2 read with section 51(2)(b)
which attracts the
prescribed minimum sentence of 10 years imprisonment. In
inquiring whether substantial and compelling
circumstances existed in
the instant matter, the benchmark used was 10 years imprisonment.
I am of the view that, on the
facts, no deviation from that
prescribed minimum sentence was justified as regards the charge of
rape. As regards housebreaking
with intent to rob and robbery
with aggravating circumstances I consider the deviation to be in
order.
[51]
A sentence of eight years imprisonment for rape in those
circumstances was very lenient. Moreover, the court directed
that the appellant serve the two sentences concurrently. In my
view none of the individual sentences nor the effective sentence
was
shockingly severe and thus inappropriate. In my view no case
has been made out to warrant any interference on appeal.
That
much Mr Makhene honourably conceded. In the absence of any
material misdirection adverse to the appellant, we are not
at liberty
to interfere. Therefore, I am inclined to dismiss the appeal as
regards sentence as well.
[52]
Accordingly I make the following order:
50.1
The appeal fails
in toto
.
52.2
The conviction and the sentence are confirmed.
_______________
M.
H. RAMPAI, J
I
concur
.
______________
H.
MURRAY, AJ
On
behalf of the appellant:
Adv. J. S. Makhene
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. M. Strauss
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/eb