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2012
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[2012] ZAFSHC 229
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Maile v S (A169/2012) [2012] ZAFSHC 229 (1 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A169/2012
In the appeal between:-
BUTINYANE JACOB
MAILE
and
THE STATE
_________________________________________________________
CORAM:
HANCKE, AJP
et
MATLAPENG, AJ
_________________________________________________________
JUDGMENT BY
:
MATLAPENG, AJ
_________________________________________________________
HEARD ON:
29 OCTOBER 2012
_________________________________________________________
DELIVERED ON
:
_________________________________________________________
[1] The appellant was
charged and convicted of housebreaking with intent to rape and rape
(read with the provisions of
section 51(1)
and (2) of the
Criminal
Law Amendment Act, No 105 of 1997
as amended as well as and robbery
with aggravating circumstances read with the provisions of
section
51(1)
of the
Criminal Law Amendment Act, No 105 of 1997
as amended in
the Regional Court, Bloemfontein. At the conclusion of the trial he
was sentenced to life imprisonment in respect
of the rape and fifteen
years imprisonment in respect of robbery. With leave of the trial
court, he appeals to this court against
both the conviction and
sentence.
[2] The appellant was
legally represented during the trial. The facts leading to his
conviction are set out as follows: The complainant
was on the day in
question seated in her room with one Isaac drinking liquor. She
claims she was not under the influence of liquor.
It was at night but
the lights were on. The door to her room was not locked and whilst so
seated the appellant kicked the door
open and entered the room. He
was accompanied by a person who was known to her. Both appellant and
his companion were known to
her as she used to see them at the
premises she was residing at. It appears that her landlady was
running a shebeen and they used
to be patrons of this shebeen.
[3] The appellant had a
knife in his possession when he entered her room. They demanded money
and cellphones from both the complainant
and Isaac. The appellant
then threw the complainant on her bed tore off her panties and
proceeded to rape her in front of Isaac
and the other person. After
finishing, the appellant and his friend pulled her out of her room
and led her to a certain place.
At this place the two cut off her
night dress with a knife and the appellant ordered her to bend over
the table. He proceeded to
rape her by penetrating her from behind
and after finishing his companion also followed suit by penetrating
her from behind.
[4] After this violation
the two perpetrators took her back to her room. They found Isaac
still in this room and they proceed to
drink the liquor they found in
this room. She asked Isaac to tell them to leave her alone but they
just laughed at her. She was
crying but they ordered her to put on
another night dress, panties and a jacket. She was still being
threatened with knives. Appellant
then pushed her out of the room and
his companion stabbed Isaac under the eye for not having money. She
was pulled to a certain
shack where she was raped again. The
appellant’s companion raped her first and left her with the
appellant. The appellant
proceeded to rape her. She states that the
sexual act took a long time and at a certain stage she felt the
appellant suddenly stopping
and remaining still. She pushed the
appellant from on top of her took her clothes and went out of the
shack put her clothes on
with the exception of her panties which she
had left inside the shack.
[5] She met people along
the way and as she was crying one man asked her what was the matter
and she made a report to him. They
accompanied her home and upon
arrival she saw that there were blood stains inside her room. She
went to her landlady to report
what had happened. Her neighbour and
co-tenant also came and made a report about Isaac’s fate. The
police were called and
she took them to the shack where she left the
appellant. They found him still half naked with his trousers at his
knees and fast
asleep. Her panties and cellphone were on top of the
bed. The police spoke to the appellant but as she is not conversant
in Sesotho
she could not get the gist of the conversation. The
appellant was then arrested. She was taken to the hospital where a
J88 was
completed.
[6] The state called her
co-tenant as well as the police officer who arrested the appellant.
Their evidence corroborated that of
the appellant relating to how the
appellant was arrested. Importantly they also corroborated the
complainant regarding the way
the appellant was found half naked as
well as the finding of the complainant’s panties at this shack.
The co-tenant also
confirmed that Isaac was stabbed below the left
eye.
[7] Appellant testified
in his own defence. He does not deny that the complainant was
attacked and raped on the night in question.
He however denies that
he is the person who committed this offence.
[8] The issue that arose
in the trial was therefore whether the appellant had been correctly
identified as the person who committed
the offence.
[9] In a well considered
judgment the learned magistrate found that the appellant had been
properly identified as the person who
committed this offence. In this
court, on behalf of appellant it was never argued that the learned
magistrate was wrong in finding
that the appellant has been properly
identified. Counsel for the appellant conceded indirectly by
referring this court to what
was stated in
S v NTULI
2003 (1) SACR 613
(W), paragraph [4]:
“
[4]
There are, of course, limitations to the content of counsel's
argument. Counsel may not misrepresent the facts or the law. At
a
minimum, however, counsel is required to uphold the interests of his
or her client without fear of the consequences. There may
be
occasions when it is proper to make concessions. Seldom, if ever,
will there be a case in which no useful submission at all
can be
advanced in a client's favour.”
[10] The appellant was
known to the complainant. She testified that he was a patron of the
shebeen at which she was a tenant. The
appellant did not deny that he
used to drink at this shebeen. He only stated that he started going
there when the complainant was
no longer residing there. Which begs
the question if he did not know the complainant, how can he assert
that the complainant was
no longer lodging at this premises.
Appellant admitted that the shack in which he was arrested belongs to
him. He did not deny
that the police found him at this shack. He
could not explain why the complainant’s pair of panties and
cellpone were in
his shack. His evidence corroborates that of the
complaint that he had fallen into a heavy sleep as he was awakened by
the police.
[11] Based on the above,
I am of the view that the concession albeit made obliquely was
properly made. The finding by the magistrate
that the appellant was
properly identified as the perpetrator of the offence cannot be
faulted and has to stand. In the circumstances
the appellant was
properly convicted.
[12] It was submitted
that the sentence imposed by the trial court is unreasonably
excessive. It is trite that sentencing is pre-eminently
the
discretion of the trial court. The court on appeal will only
interfere in certain limited instances. See
S v M
1982
(1) SA 589
(A) at 592g – h. In
S v FAZZIE AND OTHERS
1964 (4) SA 673
(A) at 684b – c the following is said:
“
Where,
however, the dictates of justice are such as clearly to make it
appear to this Court that the trial Court ought to have had
regard to
certain factors and that it failed to do so, or that it ought to have
assessed the value of these factors differently
from what it did,
then such action by the trial Court will be regarded as a
misdirection on its part entitling this Court to consider
the
sentence afresh.”
[13] The offence the
appellant was convicted of, warrants in terms of the
Criminal Law
Amendment Act, No 105 of 1997
a minimum sentence of life imprisonment
unless it can be shown that there are factors which amounts to
substantial and compelling
circumstances justifying the court to
deviate from imposing such a sentence. It was submitted that three
considerations qualified
as compelling and substantial circumstances.
These are the youthfulness of the appellant, he was a first offender
and that he was
under the influence of liquor.
[14] In
S v MALGAS
2001 (1) SACR 469
(SCA) at 481i – j and 482a the following is
said:
“
B.
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or
the
particular prescribed period of imprisonment) as the sentence that
should
ordinarily
and in the absence of weighty justification be
I
imposed
for the listed crimes in the specified circumstances.
C.
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D.
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the
offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying
the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be
excluded.
E.
The Legislature has however deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence.”
[15] The following
personal circumstances of the accused were placed before the trial
court: he was unmarried, had no dependant
except his younger brother,
a first offender, was employed earning R90,00 per day as an assistant
taxi driver, he was 22 years
of age at the time of the commission of
the offence and he appeared to have been under the influence of
liquor.
[16] In aggravation the
following came to the fore: The offence is rife in the jurisdiction
of the court, it is committed by young
men of between 20 and 29 years
of age, the rape was brutal, the complainant was raped numerous times
by two people.
[17] It is self-evident
that in determining whether there are substantial and compelling
circumstances the court has to take cumulatively
the personal
circumstances of the appellant and as well as aggravating
circumstances in order to make a proper determination.
[18] There is no doubt
that the rape was a brutal one. It was also demeaning to the
complainant. She was raped in the sanctuary
of her house in the
presence of a friend, taken to a place where she was made bend over a
table and penetrated from behind. Her
clothes were torn off her body
using a knife and she was taken home to put on other clothes.
Although it was at night she was walking
the streets half naked with
the risk of being seen by members of the public.
[19] Although she appears
not to have suffered any serious physical injuries I am enjoined by
legislation in
section 51(3)(aA)(ii)
of Criminal Law Amendment Act,
No 105 of 1997 not to take this into consideration when determining
the absence or presence of substantial
and compelling circumstances.
[20] It is no comfort to
a woman to be told that she did not suffer any physical injury. To a
woman being raped does not start and
end with the physical act. It is
an aggressive act that includes psychological as well as emotional
affectation. This manifests
in several ways as the victim will have
self doubt, self blame, feeling of helplessness and inadequacy. In
the present case although
no victim impact report was compiled, that
the complainant has psychological scars cannot be denied as is
evidenced by her incessant
crying during the trial two years after
the rape. The complainant’s person was not only violated, she
was also demeaned in
a dehumanising manner.
[21] I am satisfied that
taking both the mitigating and aggravating factors into account, the
appellant’s personal circumstances
viewed cumulatively do not
constitute substantial and compelling circumstances. The trial court
was correct in its finding in this
respect.
[22] In the light of the
above, the appeal has to fail.
ORDER
[23] In the circumstances
I make the following order:
The appeal is dismissed.
___________________
D. I. MATLAPENG, AJ
I concur.
__________________
S.P.B. HANCKE, AJP
On
behalf of appellant: Adv.
Instructed
by:
BLOEMFONTEIN
On
behalf of respondent: Adv.
Instructed
by:
The Director:
Public Prosecutions
BLOEMFONTEIN
/eb