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2011
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[2011] ZAFSHC 128
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Segale and Another v S (A69/2010) [2011] ZAFSHC 128 (25 August 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A69/2010
In
the appeal between:-
PULE BEANS SEGALE
….....................................................
Appellant
1
WILLIAM
SPENCER TOLO
…...............................................
Appellant
2
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
KRUGER, J
et
MATHEBULA, AJ
_____________________________________________________
HEARD
ON:
22 AUGUST 2011
_____________________________________________________
DELIVERED
ON:
25 AUGUST 2011
_____________________________________________________
JUDGEMENT BY:
MATHEBULA, AJ
_____________________________________________________
[1] The appellants were
convicted and sentenced by the Regional Magistrate, Welkom on the
18
th
September 2009 on a charge of rape. The complainant
was raped more than once and by more than one person, and minimum
sentence
legislation applied. Life imprisonment was the minimum
sentence. Both were sentenced to life imprisonment. They are now
approaching
the court on appeal against both conviction and sentence.
[2] On the 3
rd
June 2007, the complainant left her house in Thabong, Welkom for
work. It was around 5H30 in the morning. While walking in the
open
veld she was accosted by two males and one was armed with a dagger.
They commanded her to lie down which she did because she
was afraid.
At a later stage this group increased in number to at least ten men.
All or most of these men took turns in raping
her and also took her
earrings. In particular both first and second appellants as well as a
young man raped her more than once.
After being raped repeatedly by
the group of about ten men in the veld,
the first
and the second appellants walked with her towards the kraals and
again raped her in a furrow next to the kraals. They
were the ones
who spent more time with her while in captivity.
[3] She had to listen how
the first and the second appellants contemplated among themselves to
kill her because they thought she
was going to get them arrested.
[4] After they had raped
her they let her leave. She proceeded to work and informed her
co-worker. She was in no state to work.
They went back to her house
and the matter was reported to the police.
[5] The appellants denied
that they were involved. Identity was in dispute. The complainant was
invaded by a number of men who took
turns in raping her. She could
not identify all of them because of the fluidity of the situation and
her emotional condition. However,
she was resolute that the first
appellant was one of her assailants on the day. He came as the ninth
person and pulled all others
from her so that he could rape her. He
was the most talkative of them all and that drew her attention to
him. Some of his distinct
features were his protruding teeth, hollow
and twinkle eyes. He also gave her orders that she must suck his
manhood and even attempted
anal penetration. He raped her several
times, in several manners, at different places and over a period of
time. He was active
and spoke a lot. He made a clear and lasting
impression on her. She had ample opportunity to identify him. He was
apprehended a
short while after the incident, wearing the same
clothes the complainant had seen on him during the rape.
[6] The second appellant
was armed with a firearm and pointed it at her. He also told her that
she must say her last prayers because
he was going to kill her. The
DNA results obtained from the complainant and the second appellant
matched each other. The identity
of the second appellant was
established beyond any doubt.
[7] On behalf of both
appellants Mr. Reyneke correctly conceded that the conviction and
sentence were in order. He said that this
was one of the most
horrendous rapes he has come across in his career. The State,
represented by Mr. Hoffman, agreed and made no
further submissions.
[8] I am of the view that
the court
a quo
did not err in finding both appellants guilty
as charged. The respondent proved its case beyond reasonable doubt.
[9] The second aspect is
the issue of sentence. It is the prerogative of the trial court to
impose sentence. A court of appeal will
only interfere with any
sentence in limited circumstances see:
S v PILLAY
1977
(4) SA 531
(A) at 535 E – F and
S v PIETERS
1987
(3) SA 717
(A) at 728 B – C.
[10] The appellants
invaded a defenceless woman in the worst predatory manner. They did
not only dishonour her person by raping
her but also used very rude
words while violating her. They stripped her of all her dignity and
reduced her into nothing. They
displayed ruthlessness devoid of any
humanity. She still bears those scars long after this unfortunate
incident. She is unable
to work now. She bleeds from her private
parts regularly, on a weekly basis. The appellants did not show any
remorse.
[11] The first appellant
was 18 years 6 months during the commission of the offence. However,
his participation in the commission
of this offence belied his age.
He was the leader and dictated to a large extent what transpired on
that day. The second appellant
who was 32 years and 3 months at the
time participated substantially in the commission of the offence. He
did not only rape her
more than once but pointed a firearm at her and
threatened to kill her. The court
a quo
was correct in not
finding substantial and compelling circumstances to impose a lesser
sentence than life imprisonment. The appeal
ought to be dismissed.
[12] Accordingly, I make
the following order:-
12.1 The appeal is
dismissed.
12.2 In respect of both
appellants their convictions and sentences are confirmed.
___________________
M.A. MATHEBULA, AJ
I agree.
____________
A. KRUGER, J
On behalf of appellants:
Mr. J.D. Reyneke
Attorney for appellants
Instructed by:
Bloemfontein Justice
Centre
Legal Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv. R. Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp/wm