About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 286
|
|
Mashaba v S (A206/2012) [2012] ZAGPPHC 286 (13 November 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
No. A206/2012
DATE:13/11/2012
In
the appeal of:-
STRIKE
MASHABA
…............................................
Appellant
and
THE
STATE
...............................................................
Respondent
JUDGMENT
Van
der Byl AJ:-
[1]
The Appellant (to whom I will for the sake of convenience refer to as
“the Accused’) was on 1 December 2008 convicted
in the
regional court, sitting at Pretoria, on six counts, namely -
(a)
three counts of Rape (counts 1, 2 and 3) in that upon or about,
respectively, the period June to December 2005, during 2006
and the
period January 2007 to February 2007 and at or near Mamelodi, he did
unlawfully and intentionally have sexual intercourse
with S C without
her consent;
(b)
three counts of Assault with the Intent to do Grievous Bodily Harm
(counts 4, 5 and 6) in that during the same periods and at
or near
the same place he did unlawfully and intentionally assault the said
SC by hitting her with an open hand and the fist with
the intent to
do her grievous bodily harm.
[2]
On 14 April 2009 the Accused was sentenced to life imprisonment on
each of the three charges of Rape and to 10 years imprisonment
on
each of the charges of Assault to do Grievous Bodily Harm, being, in
the case of the rape charges, offences falling in Part
1 and, in the
case of the assault charges, offences falling in Part 111, of
Schedule 2 to the Criminal Law Amendment Act, 1997
(Act 105 of 1997).
[3]
He now appeals, by virtue of his then automatic right of appeal as
provided in section 309(1 )(a)(ii) of the
Criminal Procedure Act,
1977
, against both his convictions and the sentences imposed upon
him.
[4]
It is common cause that the complainant -
(a)
is the biological daughter of the Accused;
(b)
was born on 31 December 1992.
[5]
The evidence, furthermore, shows that the Accused was on 24 April
1998 convicted on a charge of murder for having killed the
complainant’s mother and sentenced to 10 years imprisonment.
During his imprisonment the complainant stayed with her maternal
grandparents in Hammanskraal. Shortly after his release from prison
on 10 June 2005 the complainant moved to stay with the Accused
in
Mamelodi where he stayed with his parents.
[6]
The complainant testified that during the period June 2005 when she
was only 13 years old until February 2007 the Accused forced
her to
have sex with him on various occasions and also assaulted her on many
occasions by hitting her with his open hands and his
fists and
sometimes also kicked her. In the process she was impregnated twice.
Her first child, S, was born on 7 August 2006, but
died seven days
later. The second child, W, was born on 22 May 2007.
[7]
The Accused denied all allegations against him.
[8]
The DNA evidence adduced by the State, however, shows, as was also
conceded on behalf of the Accused, indisputably that the
Accused was
the father of the second child to whom the complainant had given
birth to.
[9]
The complainant admitted that at some stage during, particularly, her
second pregnancy she told the authorities that the father
of her
child was one "Vusi”, but testified that no such a person
exists and that she had merely said so out of fear
because the
Accused had threatened to kill her should she tell anyone of the
relationship he had with her. It was only after his
arrest on 1 March
2007 on another charge that she felt free to report the matter and
had done so to the witness Ms. Gloria Mashapa,
an auxiliary social
worker at Mamelodi Child Welfare.
[11]
The magistrate rejected the Accused’s denial of having
committed any of the charges of which he was charged as not being
reasonably possibly true and accepted the complainant’s
testimony, as corroborated by the DNA evidence. The magistrate,
furthermore, held that although, according to the complainant, the
rapes as well as the assaults had taken place on a regular basis
since she started staying with the Accused during June 2005 until
late during February 2007 during which she had fallen pregnant
twice,
the Accused cannot be prejudiced if it is held that he had raped and
assaulted the complainant once during each period specified
in the
chargesheet.
[12]
I am unpersuaded that the magistrate erred in any respect in
rejecting the Accused’s evidence and in accepting the State’s
evidence and, particularly, the complainant's evidence.
[13]
As far as sentence is concerned, it is contended on behalf of the
Accused that, as has now become a monotonous refrain in the
majority
of appeals against sentence, that according to the chargesheet the
Accused was charged with rape, read with
section 51
(2) (instead of
section 51 (1)) of the Criminal Law Amendment Act, 1997 (Act 105 of
1997), providing, incidentally, for a minimum
sentence of 10 years
imprisonment.
[14]
There is no merit in this contention. Although the chargesheet
contains a reference to section 51(2) of that Act, it is obvious
from
the record -
(a)
that the Accused’s legal representative was not only well aware
of the fact that the minimum sentence prescribed in the
circumstances
of this case is one of life imprisonment, but also did her best
endeavours to persuade the magistrate not to impose
that sentence;
(b)
that there is no reason to hold that the Accused, having denied all
allegations against him and having made no incriminating
admissions
which he may not have made had the chargesheet referred to section
51(1), was in any respect prejudiced by the obvious
error in the
chargesheet.
[14]
I am satisfied that the magistrate duly considered all factors that
need to have been considered for and against the Accused
and
correctly held that there were no substantial and compelling
circumstances,
[15]
The aggravating features by far outweigh any mitigating factors.
[16]
The victim impact report contains a sad picture of the life of this
little girl who has been deprived of her childhood and
the right to
naturally develop into womanhood. In this regard I can, as has been
submitted on behalf of the State, refer to the
following -
(a)
the Accused murdered her biological mother;
(b)
he, on his release from prison, raped her regularly over a period of
18 months and impregnated her twice;
(c)
her first child died seven days after birth;
(d)
she developed a sense of hatred toward her second child because he
reminds her of her father, the Accused;
(e)
she has become promiscuous since she cannot function normally without
being involved in a sexual relationship;
(f)
both she and her child are HIV positive;
(g)
she dropped out of school in Grade 7 after having given birth to her
second child;
(g)
she lived, whilst living with the Accused, under critical and
desperate circumstances, dirty, with worn-out and shabby clothes
and
often without food.
[17]
In the result the sentence imposed on the Accused is in my view the
sentence
he
deserves.
[18]
For these reasons the following order is made:
The
Appellant's appeal against his convictions and the sentences imposed
is dismissed.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
I
agree
E
M MAKGOBA ,
JUDGE
OF THE HIGH COURT
ON
BEHALF OF THE APPELLANT: ADV KGARARA
ON
BEHALF OF THE RESPONDENT:ADV J P VAN DER WESTHUIZEN
DATE
OF HEARING:13 NOVEMBER 2012
DATE
OF JUDGMENT:13 NOVEMBER 2012