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[2012] ZAGPPHC 267
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S v Malatjie (A 286/2012) [2012] ZAGPPHC 267 (8 November 2012)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH AND SOUTH PROVINCIAL DIVISION)
CASE
NO: A 286/2012
DATE:
8 NOVEMBER 2012
In
the matter between
KELETSOALETSE
MALATJIE
.............................................
APPELLANT
And
THE
STATE
…..........................................................................
RESPONDENT
JUDGMENT
LI
VORSTER (AJ)
[1]
The appellant was charged with three counts of rape, Sexual assault,
in the Benoni Regional Court. He pleaded not guilty on
all counts and
was eventually convicted on all counts on 30 September 2011. On 10th
November 2011 the appellant was sentenced to
life imprisonment on
each count of Rape and five (5) years imprisonment on the count of
sexual assault.
[2]
The appellant now appeals against his conviction and sentence with
leave of the court a quo.
[3]
It is common cause that the appellant and the three complainants were
inhabitants of a place of safety called Mary Moodley at
the time of
the alleged offences took place. Marry Moodley is a place of safety
were juvenile boys who had been sexually abused
by members of their
families are kept and treated. It is also clear from the medical
evidence contained in the J88 forms which
were admitted by agreement
between the State and the defendant that all three the complainants
had been raped. The sole issue on
the merits was the question whether
it was appellant who raped the complainants and sexually molested a
fourth complainant named
L M.
[4]
The appellant denied having committed any of the offences he was
charged with. He was identified by all the complainants as
the
perpetrator of the offences. The appellant did not give evidence. His
answer to the evidence of the complainants identifying
him as the
perpetrator of the crimes was that they conspired against him to
falsely implicate him. It appears from the evidence
of a witness
called by the defence, a certain Mr P E Pulomo, that an incident took
place when a locker of the appellant was broken
into. A complaint was
laid by him which resulted in a certain S M, being apprehended and
interviewed. M was stated to be a complainant
in the case.
Presumably, L M, the complainant in respect of count number four (4)
was intended. The complainants in respect of
counts 1, 2 and 3 are
not implicated. It is completely illogical that the complainants in
1, 2 and 3 counts of rape, who were not
alleged to have been involved
in the breaking into the locker of the appellant, who had been
falsely implicated the appellant in
the charges against the appellant
as a means to take revenge on the appellant for his implicating them
in the locker incident,
as all but one of the complainants were not
alleged to have been involved in that incident.
[5]
In the result in the aforegoing I can not disagree with the finding
of the court a quo, that the State proved its case against
the
appellant in all the charges against the appellant, beyond a
reasonable doubt. In my view the appeal against conviction cannot
succeed.
[6]
What remains to be considered is the appeal against sentence. Both
the appellant and the Respondent n their respective heads
of argument
are agreed that the three sentences of life imprisonment on the three
counts of rape are excessive given the youthful
age of the appellant.
It is contended by the appellant, and not disputed by the respondent
that the aforesaid sentences in the
instant case are shockingly
disproportionate and warrants interference by this court. I agree. In
my view, a suitable sentence
in the instant case would be, in respect
of all the sentences on all four counts, eighteen years imprisonment
of which six years
is conditionally suspended.
[7]
Consequently, I make the following order: [7.1] The appeal is
dismissed
[7,2]
The appeal against sentences is upheld. The sentence of the court a
quo is set aside and replaced with the following:
"The
appellant is sentenced in respect of counts 1,2,3 and 4 collectively
to 18 years of imprisonment of which six years imprisonment
is
suspended for five years, on condition that the appellant is not
found guilty of rape or sexual assault within the period of
suspension."
LI
VORSTER
ACTING
JUDGE IN THE HIGH COURT
I
agree;
C
PRETORIUS
JUDGE
OF THE HIGH COURT