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[2011] ZAKZPHC 29
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Cebekhulu v S (AR 457/10) [2011] ZAKZPHC 29 (30 June 2011)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
Case No: AR 457/10
In the matter between:
Mfanini Bhekumuzi
Cebekhulu
…...............................................
Appellant
And
The State
…..............................................................................
Respondent
JUDGMENT
Delivered on:
NKOSI AJ
[1] The Appellant was charged and
convicted on one count of Rape, in contravention of section 3, read
with sections 1, 56(1), 57,
58, 59,60 and 61 of the Criminal Law
(Sexual Offence and Related Matters) Amendment Act No. 32 of 2007,
and one count of Sexual
Assault, in contravention of section 5(1),
read with sections 1, 56(1), 57, 58, 59, 60 and 61 of the same Act,
before the Regional
Court sitting at Empangeni. The conviction on the
count of Rape attracted the minimum sentence provision of section
51(1)(a) and
Part 1 of Schedule 2 of the
Criminal Law Amendment Act
No. 105 of 1997
, in that the victim was below the age of 16 years.
The Court
a quo
found no substantial and compelling
circumstances to exist which justify the imposition of a lesser
sentence than the prescribed
imprisonment for life and, consequently
sentenced the Appellant to the aforesaid sentence. On the count of
Sexual Assault, the
Appellant was sentenced to 10 years imprisonment.
[2] The Appellant now appeals, as of
right, against the conviction and sentence imposed on the count of
Rape. No leave to appeal
was sought in the count of Sexual Assault
and, therefore, nothing turns on that count on this appeal.
[3] The facts of the case, according
to the State’s version, which gave rise to the conviction were
briefly the following:
The Appellant was once employed by the
complainant’s parents to erect a perimeter fence around their
home. At some later stage,
estimated to be a month, and before he
could finish the job, he was stopped from entering the premises at
the instance of the complainant’s
mother who had felt uneasy by
his continued presence on the premises. According to the
complainant’s mother, she had taken
that decision because she
had noticed the Appellant making sexual overtures torwards the
complainant. Thereafter, on 28 July 2008,
the Appellant went to the
complainant’s home and he had sexual intercourse with the
complainant during the absence of her
parents. According to the
complainant, the aforesaid sexual intercourse had taken place without
her consent. It was common cause
that she was 12 years old at the
time. The complainant, however, did not report the incident to her
parents, because, as she said,
the Appellant had threatened to kill
her, if she did.
[4] According to the complainant’s
testimony, the Appellant again came to her home on the following day,
and, while they were
both fully clad, masturbated on top of her,
touching her vagina with his penis. This, too, was without her
consent, she said. After
the latter incident, the complainant
reported both incidents to her mother who had found her crying and
she had demanded to know
why she was crying. The complainant was
subsequently examined by Dr Becker who found that the complainant’s
hymen was recently
perforated.
[5] In his defence, the Appellant
admitted that he had sexual intercourse with the complainant, on the
day in question, but said
it was with her consent. The Appellant
proposed, in his testimony, that the complainant had either been
deceived by her mother
into laying false charges, with a promise to
be paid money, because her mother wanted him to be arrested after
failing to pay him
his outstanding wages, or the complainant had
reported the incident because she was scared of being assaulted by
her mother.
[6] The Court
a quo
accepted
the version adduced by the State and rejected the Appellant’s
proposition that the charges were falsely laid against
him, as false.
[7] It is a trite principle of our law
that the appeal court can only interfere with a conviction when there
is a serious misdirection
on fact which vitiates the conviction.
[8] On the facts, as adumbrated above,
Mr Zaca, who is the counsel for the Appellant, was unable to submit
any point of misdirection
by the Court
a quo
on the
conviction. He conceded that on the strength of the Appellant’s
admission, namely, that he did have sexual intercourse
with the
complainant, the conviction can hardly be assailed, and instead, he
directed his focus on the sentence imposed. The concession
was not
misplaced. On a conspectus of the evidence led, the Appellant’s
version that he and the complainant were lovers and
that they had
consensual sexual intercourse does not dovetail with reasonable
possibilities. This is so, in view of the complainant’s
insurmountable emotional state after the incident, and the manner in
which the aforesaid incident, previously unknown to the complainant’s
parents, came to the fore. It is highly unlikely that the complainant
had made a
volte-face
about the alleged love relationship and
equally unlikely that her mother had hit her in order to extract a
confession of sorts
about the incident. Therefore, the Appellant’s
proposition that the complainant had either lied in order to save her
skin
or because her mother had colluded with her to cause him to be
arrested, so as to avoid paying his wages, does not find support
in
the evidence and it was correctly rejected in the Court
a quo
.
The conviction must therefore stand.
[9] Coming to the sentence imposed, Mr
Zaca submitted that the sentence of life imprisonment was too severe
compared to lighter
sentences imposed by higher courts for similar
crimes. In his view, and because of the seriousness of the crime, an
imprisonment
for 25 years would be more appropriate, bearing in mind
the fact that the Appellant was 37 years of age, a first offender and
a
good candidate for rehabilitation. The submission was strongly
opposed by Ms Greeff, who was counsel for the State. The proposition
is legally flawed, in my view. The conviction attracted the minimum
sentence provisions alluded to above. The appropriateness of
the
sentence, therefore, depends on whether substantial and compelling
circumstances exist which justify a lesser sentence or not.
Even
where a discretion arise, there is no catalogue for appropriate
sentences. Each case must be dealt with on its merits.
[10]
In casu
, the court
a
quo
found no substantial and compelling circumstances despite the
mitigating factors alluded to above, and correctly so, in my view.
The Appellant was a 37 year old man, who should have acted with
utmost maturity towards the 12 year old, innocent child. Instead,
he
responded to his sexual urges by taking advantage of the defenceless
child, in the sanctuary of her home, in order to satisfy
his wicked
desire. This was after he had been warned and barred from entering
her premises for fear he might eventually force himself
on her in
that sexual manner. His actions were evidently fully and carefully
calculated. At his trial, he showed no remorse for
this dastardly
act, but instead blamed the victim and her mother for his woes. The
aforegoing is aggravating against him. The gravity
of the crime and
its repulsiveness outweigh his personal circumstances which must,
therefore, recede. These crimes, perpetrated
against the most
vulnerable members of society, are a cancer that eats away into our
social fabric of decency and should, therefore,
be treated with
contempt which is deserved. The finding of the Court
a quo
can, therefore, not be faulted.
[11] In the result, the order is
proposed that the appeal against both conviction and sentence on the
Rape count be and is herby
dismissed.
________________________
I agree. It is so ordered.
_______________________
GORVEN J
Date of Hearing: 23 June 2011
Date of Judgment: 30 June 2011
For the Appellant: Mr Zaca
Instructed by: Legal Aid,
Pietermaritzburg
For the Respondent: Ms Greeff
Instructed by: Director of Public Prosecution (Durban)