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 169
|
|
Wolf v S (A75/2015) [2015] ZAFSHC 169 (10 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: A75/2015
DATE: 10 SEPTEMBER 2015
In the matter of:
BOIKIE LOYISO
WOLF
.........................................................................................................
Applicant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: MOLEMELA, JP et MOKOENA, AJ
JUDGEMENT: MOKOENA, AJ
HEARD ON:31 AUGUST 2015
DELIVERED ON:10 SEPTEMBER 2015
[1] This is an appeal against sentence
only. The appellant was convicted in the Bloemfontein Regional Court
on a charge of rape.
On 11 February 2011 the court a quo sentenced
the appellant to life imprisonment. The court ordered the
appellant’s name
be included in the register of sexual
offenders. Appellant has an automatic right of appeal.
[2] The grounds of appeal relating to
the sentence are that the court a quo (a) misdirected itself by
finding that there were no
compelling and substantial circumstances
justifying it to deviate from imposing the minimum sentence of life
imprisonment and (b)
erred by not giving sufficient regard to the
mitigating factors which were present and instead gave too much
weight to the aggravating
factors.
[3] The issues to be determined are (a)
whether the court a quo should have found that substantial and
compelling circumstances
existed, justifying a departure from the
mandatory minimum sentence of life imprisonment and (b) whether the
life imprisonment
imposed by the court a quo was such as to render
the sentence disproportionate.
[4] On the night of 8 December 2008 the
appellant raped the complainant, a 15 year old girl, more than once.
The complainant, together
with her friend, were visiting the
appellant’s step daughter at latter’s grand-mother’s
house in Freedom Square.
The appellant found the three girls in the
kitchen eating dinner and after a few minutes he ordered them to
switch off the lights.
The girls did not switch the lights off as
they were busy eating. The appellant turned the lights off himself.
The three girls
then ran into the bedroom. Appellant followed them
and dragged the complainant back into the kitchen where he undressed
her and
raped her. He ignored one of the girls when she told him to
stop and instead took the complainant to the outside toilet where he
raped her again. The two girls called the neighbour who came and
knocked at the toilet door. The appellant opened the door and
managed to run away. He was arrested after eluding the police for
several months.
[5] Section 51(2) read with Part 1 of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (“the
Act”) provides
for a prescribed minimum sentence of life
imprisonment for the rape of a child below the age of 16 years and
also where the offender
raped his victim more than once unless the
court finds substantial and compelling circumstances that justify a
lesser sentence.
[6] In S v Bogaards
2013 SACR 1
at para
[41] the CC stated that:
“Ordinarily, sentencing is within
the discretion of the trial court. An appellate courts’ power
to interfere with sentences
imposed by courts below is circumscribed.
It can only do so where there has been an irregularity that results
in a failure of
justice, the court below misdirected itself to such
an extent that its decision on sentence is vitiated, or the sentence
is so
disproportionate or shocking that no reasonable court could
have imposed it.”
[7] In sentencing the appellant, the
court a quo took these mitigating factors pertaining to the
appellant’s personal circumstances
into consideration namely:
(a) the appellant was 40 years old, (b) the appellant was
self-employed as a hawker earning between
R1 000 and R1 8000 per
month, (c) he was unmarried and had three minor children even though
it was unclear whether or not he maintained
those children and (d) he
can be regarded as a first offender in that his previous conviction
of rape of a girl under the age of
16 years was committed more than
10 years prior to the rape offence in casu.
[8] In Madiba v S (497/2013)
[2014]
ZASCA 13
,
2015 (1) SACR 485
(SCA) para 13g, the court said:
“All of the circumstances paled
into insignificance when the brutality of the rape perpetrated by the
appellant was considered.”
[9] Child rape is a national scourge
that shames our nation. See MDT v S (548/2013)
[2014] ZASCA 15
para
[7].
[10] The court a quo correctly took
into account the fact that it was an aggravating factor that: (a) the
appellant is well known
at least to the two girls, (b) the
complainant was raped in front of her two friends, (c) the offence
impacted on all the three
girls, (d) the age of the complainant and
(e) the seriousness of the offence.
[11] It was argued on behalf of the
appellant that the offence was committed without the use of a weapon.
Rape is inherently an
act of violence – See S v Ncheche [2005]
ZASPHC 21
[2005] ZAGPHC 21
; ,
2005 (2), SACR 386
(W) at para
[25]
.
[12] It was also argued on behalf of
the appellant that no victim impact evidence was led. I have no
doubt that the complainant
would have suffered untold emotional harm
resulting from this heinous rape.
[13] In Netshivhodza v S (962/2013)
[2014] ZASCA 145
(26 September 2014 at 8 at para [7] it was said:
“The fact that an impact report
regarding the effect the rape had on her was not obtained, does not
detract from the severity
of the crime and the fact that it can be
accepted that the complainant has suffered psychological harm.”
[14] The appellant showed no remorse.
I am satisfied that the court a quo gave sufficient regard to the
mitigating factors which
were present.
[15] I am also satisfied that the court
a quo was correct in its conclusion that there were no substantial
and compelling circumstances
present to justify the imposition of a
sentence less than the prescribed minimum sentence of life
imprisonment.
[16] In the result, I find that the
life imprisonment sentence is proportionate in the circumstances.
ORDER
[17] The following order is made:
1. The appeal against sentence is
dismissed.
2. The sentence of life imprisonment
imposed by the Court a quo is confirmed.
R. MOKOENA, AJ
I concur, and it is so ordered.
M.B. MOLEMELA, JP
On behalf of the appellant: Mr. P.
L. van der Merwe
Instructed by: Justice Centre
BLOEMFONTEIN
On behalf of the respondent: Adv. S.
Mthethwa
Instructed by:Director: Public
Prosecutions
BLOEMFONTEIN