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
>>
2012
>>
[2012] ZAFSHC 218
|
|
Sebagalo v S (A36/2012) [2012] ZAFSHC 218 (22 November 2012)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Appeal No.: A36/2012
In the appeal between:-
KASIMU SEBAGALO
...................................................................................
Appellant
and
THE STATE
..............................................................................................
Respondent
______________________________________________________________
CORAM:
VAN DER MERWE, J
et
MOLEMELA, J
______________________________________________________________
HEARD ON:
19 NOVEMBER
2012
______________________________________________________________
DELIVERED ON:
22
NOVEMBER 2012
______________________________________________________________
MOLEMELA, J
[1] This is an appeal against sentence
only. The appellant was convicted of rape by the regional court in
Bloemfontein. He was subsequently
sentenced to twenty four years
imprisonment.
[2] The facts giving rise to this
appeal are as follows: The complainant was in the appellant’s
employ. The complainant and
her co-employee were supposed to receive
their weekly wages from the appellant on the day of the incident. The
appellant, however,
did not pay them, prompting the complainant and
her co-employee to make enquiries about their wages. In response, the
appellant
informed them that he had sent someone to the bank and was
waiting for that person to bring him some money. He then took them to
certain premises and instructed them to wait for him there. He later
returned, but did not pay them. After waiting for about three
hours,
the complainant demanded her wages from the appellant. The appellant
became aggressive towards her and hit her with an open
hand. He then
asked her whether she wanted to be raped. He hit her twice with an
iron rod on her arms. He then pushed her onto
the floor, undressed
her and then raped her. Both the complainant and her colleague cried.
An acquaintance of the appellant arrived
at the scene and told them
that they were making noise. He then sat on the sofa and watched as
the appellant raped the complainant
for the second occasion. After
pausing for a while, the appellant then raped the complainant for a
third time. The appellant then
chased the complainant and her
co-employee away from the premises. As a result of the incident, the
complainant sustained injuries
to her forehead, her arm and some of
her hair was pulled out, leaving her with bald patches on her head.
She also sustained injuries
to her genitals. The complainant endured
the assault and the rape for about four hours.
[4] Although the appellant had, in his
heads of argument, contended that the sentence imposed by the court
a
quo
was too harsh under the circumstances and that the court
a
quo
had misdirected itself by failing to take into account the
two year period the appellant spent in custody while awaiting trial,
during the hearing of the appeal, counsel for the appellant conceded
that given the aggravating circumstances that accompanied
the
offence, the court
a quo
’s sentence was justified. He
thus conceded that the appeal has no merit.
[5] It is clear from the record that
in concluding that the rape committed by the appellant to be of a
nature warranting imposition
of a severe sentence, the court
a quo
took the following aggravating factors into account:
(i) that the offence was rife in the
court’s area of jurisdiction;
(ii) that the appellant, as the
complainant’s employer, abused the trust relationship that
existed between him and the complainant;
that the appellant subjected the
complainant to further humiliation by raping her in the presence of
two other persons;
that the appellant subjected the
complainant to violence and inflicted injuries on her;
that the complainant was traumatised
by the incident.
that the appellant showed no remorse
and failed to accept responsibility for his actions;
[6] It is evident
from the record that the court a quo considered the following
mitigating factors: that the appellant was 26 years
old at the time
of commission of the offence; that he was a first offender; that he
passed grade 12; and that he was economically
active. It is also
clear from the record that these mitigating factors, including the
period spent by the appellant in custody
while awaiting trial, are
far outweighed by the appellant’s aggravating factors. While
the sentence imposed by the court
a quo
is relatively heavy, it is justified by the
circumstances of the case. It is not a sentence that can be
considered to be “disturbingly
inappropriate” or “totally
out of proportion to the gravity or magnitude of the offence”.
See
S v SALZWEDEL AND OTHERS
1999 (2) SACR 586
(SCA).
The concession
made by the appellant’s counsel was thus properly made.
[7] Given all the circumstances, the
appropriate order would be the following:
ORDER:
1. The appeal against sentence is
dismissed.
2. The sentence imposed by the court
a
quo
on the 14
th
May 2009 is confirmed.
_________________
M.B. MOLEMELA, J
I concur.
_______________________
C.H.G. VAN DER MERWE, J
On behalf of appellant: Mr J D Reyneke
Instructed by:
Legal Aid SA
BLOEMFONTEIN
On behalf of respondent: Adv S Giorgi
Instructed by:
Director Public Prosecutions
BLOEMFONTEIN
/sp