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2012
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[2012] ZAFSHC 15
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Maya v S (A284/2010) [2012] ZAFSHC 15 (16 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A284/2010
In the appeal between:-
MUSI ERIC MAYA
…................................................................
Appellant
and
THE STATE
….....................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
6
FEBRUARY 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
16 FEBRUARY 2012
_____________________________________________________
[1] This is an appeal
against sentence imposed by the magistrate in the regional division
of the Free State, held at Sasolburg.
[2] The appellant’s
application for leave to appeal was refused by the trial court.
[3] He petitioned the
Judge President of this court and he was granted leave to appeal
against sentence.
[4] The appellant was
convicted of rape on 8 December 2009 and sentenced to twenty years
imprisonment on the same date.
[5] The facts of this
case are, briefly, that the complainant was walking alone, in the
early hours of the morning from the tavern,
going home.
[6] Along the way, she
was accosted by two people and they dragged her, causing her to fall
down.
[7] She was then raped by
the appellant in the middle of the street.
[8] She was screaming and
crying and some people came out to help her, and the appellant ran
away.
[9] In examination in
chief, the complainant had testified that she was grabbed by two
people.
[10] She, however,
conceded in cross examination that the only person who grabbed her
was the appellant and that the other person
was standing on the side.
[11] She further
testified that only the appellant assaulted and penetrated her.
[12] Unfortunately, the
judgment of the magistrate does not give an indication of which
sentencing regime did she apply; that is,
whether she sentenced the
appellant on the basis that the circumstances of the rape are such
that it falls under Part 1 of Schedule
2 or Part 111 of Schedule 2.
[13] It can only be
inferred, from the sentence that the Magistrate imposed, that she
sentenced the appellant in terms of Part 1
of Schedule 2. I find this
to be a misdirection on the part of the magistrate.
[14] It is common cause
that the complainant was only raped once by the appellant.
[15] I therefore agree
with both Mr. Reyneke and Mr. Harrington that it is Part 111 of
Schedule 2 which is applicable to this case.
[16] Section 51(2)(b) of
Act 105 of 1997 provides as follows:
“
Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or High Court shall sentence a person who
has been convicted of
an offence referred to in-
(a) Part 111 of Schedule 2, in the
case of-
a first offender, to imprisonment for
a period not less than 10 years;
Provided that the maximum term of
imprisonment that a regional court may impose in terms of this
subsection shall not exceed the
minimum term of imprisonment that it
must impose in terms of this subsection by more than five years.”
[17] In the light of the
above, the magistrate could not have imposed a sentence above 15
years, being 10 years, as the appellant
is the first offender, plus a
further period of five years and I therefore find that this is an
appropriate case where the court
of appeal can interfere with the
sentence imposed by the trial court.
[18] The seriousness of
the crime of rape cannot be overemphasized. I have never come against
any decision where it was not held
that rape is a very serious crime
which invades both the privacy and dignity of the victim. Suffice it
to say that I share these
sentiments.
[19] In this case, the
complainant was not only raped, she was also assaulted by the
appellant.
[20] She was further
humiliated by the fact that she was raped in the middle of the street
and was found by people, including male
people, half naked.
[21] In the premise, I am
of the view that an appropriate sentence is one of 12 years
imprisonment.
[22] I therefore make the
following order:
The appeal succeeds;
The conviction stands;
The sentence of twenty
years imprisonment imposed by the court
a quo
on the 8
th
December 2009, is set aside and substituted with the following:
22.4 The accused is
sentenced to 12 (Twelve) years imprisonment in terms of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
, which is deemed to
have been imposed on 8 December 2009.
_________________
N.W. PHALATSI, AJ
I concur.
________________
M.H. RAMPAI, AJP
On
behalf of appellant: Attorney J.D. Reyneke
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv. W.J. Harrington
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp