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2012
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[2012] ZAGPPHC 16
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Mhlangu v S (A244/2011) [2012] ZAGPPHC 16 (29 February 2012)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN GAURENG HIGH COURT,
PRETORIA)
CASE NO: A244/2011
DATE:29/02/2012
In
the matter between:
RAPHAEL
MHLANGU
…...................................................'........................................
Appellant
and
THE
STATE
JUDGMENT
[1]
The Appellant was convicted of:
Count
1: Assault with the intention to do grievous bodily harm; and Count
2: Rape.
Appellant
pleaded not guilty to both charges. On count 1 the Appellant was
sentenced to 2 years imprisonment and on count 2 to life
imprisonment. The sentences are to run concurrently.
[2]
The appeal is against both conviction and sentence.
[3]
Regarding count 2 the complainant testified that she and the
Appellant previously had a relationship. The sexual act committed
on
her by the Appellant, however, took place without her consent. She
testified how she was forced by the Appellant, away from
a place of
social gathering to the shack where he eventually raped her. On the
evidence seen as a whole it is evident that the
Appellant was
correctly convicted of rape. However, it is also evident that the
Appellant, on the particular day (being 2 August
2008) only had
sexual intercourse with the complainant once and not repeatedly as
found by the Magistrate.
[4]
Regarding the conviction on count 1 (assault with the intent) the
facts clearly show that assault with the intent has not been
proven.
The complainant's evidence regarding the assault on her does not
justify a conviction of intent to do grievous bodily harm
but common
assault: according to her the Appellant hit her with his fists and
open hands and kicked her. In addition, no J88 was
handed in. There
accordingly exists no reasonable basis on which the Appellant could
have been convicted as aforesaid.
[5]
Regarding sentence pertaining to the conviction of rape it is common
cause between the legal representatives of the State and
the
Appellant that the court a quo misdirected itself by relying on
Schedule 2 Part 1: multiple intercourse or grievous bodily
harm had
not been proven. The court should have relied on Schedule 2 Part 3.
[6]
The personal circumstances of the Appellant were properly placed
before the court a quo. The following considerations as alluded
to by
counsel for the Appellant are relevant:
-
Appellant was already in custody for 1 year and 5 months;
The
physical condition of the complainant subsequent to the assault and
rape is uncertain but not serious;
-
There was a single act of sexual intercourse;
-
No J88 was handed in (only a DNA profile);
-
No medical evidence was presented to the court.
[7]
In the result the following order is made: A. Ad Conviction:
Ad
Count 1:
The
Appellant's conviction of assault with the intention to do grievous
bodily harm is set aside.
Ad
Count 2:
The
Appellant's conviction of rape is confirmed. Ad Count 1:
The
Appellant is convicted of common assault.
B.
Sentence:
On
Count 1 (common assault) the Appellant is sentenced to 1 year
imprisonment.
On
Count 2 (rape) the Appellant is sentenced to 12 years imprisonment
antedated to 9 November 2008 and the sentence of life imprisonment
is
set aside.
The
sentences on Counts 1 and 2 are to run concurrently.
TJ
KRUGER AJ
I
agree
N.M.
Mavundla J