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[2011] ZANCHC 5
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S v Oliphant (K/S 38/10) [2011] ZANCHC 5 (10 May 2011)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case No: K/S 38/10
Heard:
01-28/02/2011
01-22/03/2011;
03/05/2011
Delivered:
10/05/2011
In
the matter between:
THE
STATE
v
FRANS
OLIPHANT
…..............................................................
Accused
JUDGMENT
ON SENTENCE
KGOMO
JP
The accused, Mr
Oliphant, a Galeshewe, Kimberley, man of 38 years, was on 03 May
2011 convicted on eight of the ten charges he
faced. These are:
Assault common, assault with intent to do grievous bodily harm,
rape, theft, arson, attempted murder, kidnapping
and attempted
assault with intent to do grievous bodily harm.
In aggration of
sentence the state called Ms D, who still testified in camera.
Sobbing throughout her testimony, she described
how her intolerable
treatment at the hand of the accused has edged deep psychological
scars in her life. The thought that the
accused on more than one
occasion threatened to kill her and take his own life and that she
escaped being charred in an inferno
in her residence causes her
sleepless nights. Her sleeping pattern has therefore been adversely
affected. During the trial she
testified that the accused reminded
her of the tragic occurrence when her father killed her mother.
This, in my view, instilled
in Ms D an abiding traumatic memory.
Ms D testified that
her love and interactive relationship with men has suffered because
she is less trusting of them. The bad
experience has even
transcended to family and friends. I must observe here that a
disconcerting trend has developed whereby the
culprits that are near
and dear to victims take advantage of them and in a perverse irony
afterwards try to invoke their very
close relationship as an
ameliorating factor; for example lovers or husband and wife. This
cannot be.
Ms D has explained
that she has suffered great financial loss as a result of the
destruction of her property and the restoration
of the burnt flat
that she leased. The combined initial damage was quantified at more
than R14 000-00 but this does not take
account of the much higher
replacement cost. Ms D is a low income earner. She says having
expended money on taking care of the
aforementioned damages she was
unable to pay her other debts, which has resulted in sullying her
creditworthiness.
Rehanna Moshoeshoe’s,
the 15 year old missing girl’s, father made a plaintive plea
to the accused. He spoke on behalf
of Rehanna’s mother (his
ex-wife), the extended family, their friends, the various support
groups since Rehanna’s
disappearances and the broader
Kimberley/Galeshewe society. Tell us, he says, where Rehanna is.
Tell us what you did to her.
Give us the sordid details; distasteful
as that may be, because if you have killed her that knowledge is
preferable to the unending
ignorance of not knowing her whereabouts
because we can reconcile ourselves with her death and get closure.
Mr
Moshoeshoe wore an anguished and distressed expression. The
courtroom, the biggest, was full to its rafters. Mr Moshoeshoe
was
not swept up by emotions nor did he play to the gallery. He showed
no anger and bitterniss. He was polite and addressed the
accused as
“
my
brother, Mr Oliphant.”
He
never tried to belittle the accused. Where there may have been a
hint of it, I don’t believe there was, it would have
been
entirely unintended. I was as vigilant as I could to ensure the
accused’s dignity was not impinged upon; mindful also
of what
the Constitutional Court stated in
Key
v Attorney – General, Cape Provinicial Division and Another
1996(4) SA 187 (CC) at
195G (para 13) that:
“
[13] In any
democratic criminal justice system there is a tension between, on the
one hand, the public interest in bringing criminals
to book and, on
the other, the equally great public interest in ensuring that justice
is manifestly done to all, even those suspected
of conduct which
would put them beyond the pale.”
Mr Moshoeshoe informed
the accused that the punishment, of whatever nature, meted out is
scant consolation if contrasted with
him revealing Rehanna’s
whereabouts: dead or alive. He reminded the accused that whereas the
law must take its course in
exacting punishment the truth will set
him (the accused) free spiritually as he will be relieved of
carrying the burden of guilt
for the rest of his life. I reckon by
“the truth will set you free” Mr Moshoeshoe had in mind
what was said by Jesus
Christ in the Holy Bible, the book of John,
Chapter 8: verse 32 that:
“
If you hold
my teaching, you are really my disciples. Then you will know the
truth, and the truth will set you free.”
Finally, Mr Moshoeshoe
explained what adverse impact Rehanna’s disappearance has had
on the family, particularly that of
Rehanna’s mother, Mrs Mpho
Moshoeshoe, and Rehanna’s paternal grand mother who is 77
years old, whose health has
taken a severe knock. He explains that
Rehanna’s mother is a nervous wreck and has not been able to
resume her teaching
duties since Rehanna’s disappearance. She
is still under medical and psychological treatment and her medical
aid has been
exhausted.
The
ordeal suffered by Ms D and Rehanna’s family in their
respective contexts brings me to what
Ponnan
JA
,
writing for the Court, stated in
S
v Matyityi
2011(1)
SACR 40 (SCA) at 51f – h:
“
None of her
rapists used condoms. Each ejaculated. Although not properly explored
during her evidence, it is obvious that her ordeal
must have been a
horrific one. She had to submit to the brutal and naked invasion of
her person in the knowledge that her boyfriend
may have been mortally
wounded. What we do know is that the trauma she suffered was so
severe that, by the time of the trial, approximately
one year after
the incident, she was still receiving counseling. According to her,
the experience had made her deeply afraid and
had even impacted
negatively on her relationship with her family. As this court has
previously sought to make clear, women in this
country 'have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and
come from work, and to
enjoy the peace and tranquility of their homes without the fear, the
apprehension and the insecurity which
constantly diminishes the
quality and enjoyment of their lives' (
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA)).”
Notwithstanding the
evidence in aggravation and his conviction on the eight charges the
accused elected not take the stand and
explain what happened to
Rehanna and why he did the things to Ms D attributed to him. The
judgment on the merits show that during
the bail proceedings in
May/June 2010 the accused suffered from selective amnesia by
testifying that he could not recall what
he discussed with Rehanna
on Saturday 20 February 2010 and Sunday 21 February 2010; the eve
and the day of Rehanna’s disappearance,
respectively. However,
during the trial his memory was lucid and proffered that they had a
wonderful conversation on the Saturday
which they revisited on the
Sunday of her disappearance. He has now spurned the opportunity to
explain these discrepancies.
The accused raised the
family’s hopes when he hinted at revealing where Rehanna was
when he spoke to Mr Themba Ngwenya on
Monday 22 March 2010. He
undertook to revert to Mr Ngwenya but failed to do so. In addition
he informed Colonel Perumel on 06
March 2010 that he had resolved to
confess to what has happened to Rehanna but wanted first to speak to
the Director of Public
Prosecutions and to Rehanna’s mother.
Whilst preparations were being considered and/or made to this end he
attempted to
commit suicide.
In
his evidence-in-chief the accused testified
ad
nauseam
about
peripheral and irrelevant matters but merely glossed over Rehanna’s
disappearance in a matter of a few minutes, hardly
occupying more
than two pages of the transcribed record. During the trial the
accused was in jovial mood and cracking jokes.
His whole demeanour
was of a person who did not care and derived a measure of
satisfaction from the occasion and even laughed
at times. During the
sentencing phase he sat expressionless.
In
S
v Matyityi
(above)
at 51j – 52b the SCA stated:
“
The
one person who could have filled those gaps was the respondent [the
accused]. He chose not to. That was his right.
S
v Dzukuda and Others
;
S
v Tshilo
2000
(2) SACR 443 (CC)
(2000
(4) SA 1078
;
2000 (11) BCLR 1252)
para 40.
But
it is not without its consequence, for, as the Constitutional Court
has endeavoured to stress (
S
v Jaipal
2005
(1) SACR 215 (CC)
[2005] ZACC 1
;
(2005
(4) SA 581
;
2005 (5) BCLR 423)
para 29.
):
34
[2005] ZACC 1
;
2005
(1) SACR 215
(CC)
(2005 (4) SA 581
;
2005 (5) BCLR 423)
para 29.
'The
right of an accused to a fair trial requires fairness to the accused,
as well as fairness to the public as represented by the
State. It has
to instil confidence in the criminal justice system with the public,
including those close to the accused, as well
as those distressed by
the audacity and horror of crime.'
His
silence thus leads irresistibly to the conclusion that there was
nothing to be said in his favour.
”
The personal
circumstances of the accused, proffered from the bar, are pretty
mundane. He is married to his wife, Xoliswa, whose
phone calls he
twice ignored whilst evidently accosting Rehanna. They have two
children aged 8 and 6. He passed Standard 10 (Grade
12) at school.
During his arrest on 26 February 2010 he had been working for
Stuttafords Van Lines, a furniture and household
goods removal
company, for more than a year. I am unsure how much this factor
helps the accused because he embarrassed his employer
by stealing
the laptop, which features in Count 8, from Stuttafords’
custody. He earned R4000-00 per month. The accused
has been in
custody, having been denied bail, since 07 March 2010 – just
over a year and two months. He is deemed to be
a first offender
since his conviction for theft took place in 1995 – more than
10 years ago.
Counsel
are
ad
idem
that
unless substantial and compelling circumstances are found to exist
the accused is liable to be sentenced to life imprisonment
for the
rape of Ms D. The accused has been apprised of this enhanced
sentencing jurisdictional option in that the indictment
specifically
states that the charge of rape must be read with the various
applicable provisions of the Criminal Procedure Law
(Sexual
Offfences and Related Matters) Amended Act, 32 of 2007. As the Court
pointed out in the
Matyityi
case
(above)
at 53b:
“
The sexual
assaults covered by this new Act extend beyond phenomena previously
covered by the definition of rape, to include male
rape and sexual
penetration of a whole range of orifices. It also covers human
trafficking, pornography and prostitution (including
charges against
clients of sex workers).”
The accused committed
two distinct acts of rape against Ms D during the same evening. The
first took place at the ABC Cemetary
where the indecent assault-type
rape took place whereafter the accused drove Ms D to her flat and
raped her again – the
conventional or common law rape. The
indecent assault-type rape was accompanied by some assault, not a
severe assault. The second
rape was accompanied by Ms D being
incarcerated in her room from 03h00 to 06h00 and her cellphone being
removed from her whilst
the accused went to his home.
The case involving the
kidnapping of Rehanna excited a lot of interest as shown in paras 5
and 6 (above). When Rehanna’s
father made his plea there was a
lot of weeping. A sentencing court must be astute not to be
influenced by such an event and
be tempted to impose an unreasonably
harsh sentence. I caution myself that the accused must not be
punished as if he murdered
Rehanna. Ms Jansen, for the state,
submitted that the fact that Rehanna has not shown up and the
circumstances of her disappearance
are aggravating factors. I agree.
In
S
v Thonga
1993(1)
SACR 365(V) at 370b-i the court remarked:
“
A
judicial officer should not approach punishment in a spirit of anger
because,
being
human, that will make it difficult for him to achieve that delicate
balance between the crime, the criminal and the interests
of society
which his task and the objects of punishment demand of him. Nor
should he strive after severity; nor, on the other hand,
surrender to
misplaced pity. While not flinching from firmness, where firmness is
called for, he should approach his task with
a humane and
compassionate understanding of human frailties and the pressures of
society which
contribute
to criminality. It is in the context of this attitude of mind that I
see mercy as an element in the determination of
the appropriate
punishment in the light of all the circumstances of the particular
case.'
During
the sentencing phase the trial court is then called upon to exercise
its penal discretion judicially and only after a careful
and
objectively
balanced consideration of all relevant material.
Certain
guidelines may be laid down in this regard. In my view the punishment
must firstly be reasonable, ie it should reflect the
degree of moral
blameworthiness attaching to the offender, as well as the degree of
reprehensibleness or seriousness of the offence.
Punishment therefore
should ideally be in keeping with the particular offence and the
specific
offender.
It is necessary, secondly, for the punishment to clearly reflect the
balanced process of careful and objective consideration
of all
relevant facts, mitigating and aggravating. The sentence should,
thirdly, reflect consistency, as far as is humanly possible,
with
previous sentences imposed on similar offenders committing similar
offences, lest society should believe that justice was
not seen to be
done. Lastly, the penal discretion is to be exercised afresh in each
case, taking the facts of each case and the
personality of each
offender into account.
To
all this I would add that the trial Court does not impose sentence in
vacuo. It, to the contrary, certainly does so within a
certain time
frame and at a certain stage in the development of the people(s) of a
district, or a province, or a country, or even
a continent. The
criminal court is also an instrument in the hands of society,
applying its laws, reflecting
its
values and its moral indignation at unlawful conduct, as well as the
negative or harmful effect thereof on third parties or
society
itself. But in a civilised society punishment reflects also the
interests of the offender himself. The trial court, in
a criminal
matter then, functions not in a technical laboratory, but as a living
instrument, a vital component of the fabric of
society, serving the
interests of society and all of its law-abiding members.
”
I align myself with
these remarks.
The
accused has shown no contrition or remorse. On the contrary he seems
to have derived some satisfaction from the whole sad
saga. Catch me
if you can, he seems to say. I know I have
“
done
a clean job.”
Kidnapping
is a very serious offence. Indeed it ranks amongst the most serious
offences in this country. In fact in several schedules
to the
Criminal Procedure Act it is listed with crimes such as murder,
rape, treason etc. It involves the gratuitous deprivation
of a
person’s liberty and freedoms guaranteed in the Constitution
of the Republic of South Africa, 108 of 1996. If the
arbitrary
restriction of freedom is prolonged it surely amounts to modern day
slavery. It is immaterial whether the accused acted
alone or was in
cahoots with a collaborator. He bears full responsibility for
Rehanna’s prolonged disappearance and plight.
This is a
serious aggravating factor. Even though the state did not call for
life imprisonment in this regard either, and I have
not come across
a precedent that life imprisonment has been imposed for kidnapping
simpliciter
i.e. unaccompanied by
murder or rape
or
serious assault, it does not mean that life imprisonment in
appropriate cases is not competent.
If
ever one has to look for an ideal candidate for rehabilitation the
accused is not one of them. He exploits and abuses young
women and
girls. It is startling that after effecting the disappearance of
Rehanna in the morning of Sunday 21 February 2010,
on the very
afternoon he promised Ms Mampe
“
a
better life”
in
a bit to soften her up to agree to sex. She rebuffed his advances.
She is, as they say,
“
the
lucky one that got away.”
As
shown hereinbefore the aggravating factors by far outweigh the
mitigating features. This notwithstanding I am of the considered
view that both the rape and kidnapping cases do not call for the
imposition of life imprisonment. The state has not called for
such
sentences as I have said. In
S
v Malgas
2001(1)
SACR 469 (SCA) the SCA per
Marais
JA
stated
at 482e-f:
“
I. If the
sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
The accused deserves a
long prison sentence lest society take the law into their own hands
if the courts trivialize serious offences.
I accordingly impose
the following sentences:
1.
COUNT
1: ASSAULT COMMON:
The accused is
sentenced to six (6) months imprisonment.
2.
COUNT
3: RAPE:
The accused is
sentenced to 15 (fifteen) years imprisonment.
3.
COUNT
5: ASSAULT WITH INTENT TO DO GRIEVIOUS BODILY HARM:
The accused is
sentenced to 18 (eighteen) months (1½ years) imprisonment.
4.
COUNT
6: ARSON:
The accused is
sentenced to 5 (five) years imprisonment.
5.
COUNT
7: ATTEMPTED MURDER:
The accused is
sentenced to 6 (six) years imprisonment.
6.
COUNT
8: THEFT:
The accused is
sentenced to 2 (two) years imprisonment.
7.
COUNT
9: KIDNAPPING:
The accused is
sentenced to 15 (fifteen) years imprisonment.
8.
COUNT
10: ATTEMPTED ASSAULT WITH INTENT TO CAUSE GRIEVIOUS BODILY HARM:
The accused is
sentenced to 6 (six) months imprisonment.
9.
It is
ordered that the sentences in respect of Counts 1, 5, 6, 8 and 10 run
concurrently with the sentence of 15 (fifteen) years
imprisonment in
Count 3. The accused will therefore serve an effective sentence of 36
years.
_____________________
F
DIALE KGOMO
JUDGE
PRESIDENT
Northern
Cape High Court, Kimberley
On
behalf of the State
:
Adv
C G Jansen
Instructed by: Director
of Public Prosecutions
On
behalf of the Accused
:
Mr
A Van Tonder
Instructed by: Legal
Aid Board