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[2010] ZAFSHC 114
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Monyatso v S [2010] ZAFSHC 114 (5 August 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : A302/2007
In
the appeal between:-
T.
M. MONYOTSO
and
THE
STATE
CORAM:
HANCKE,
AJP
et
KAHN, AJ
_____________________________________________________
JUDGMENT:
KAHN,
AJ
_____________________________________________________
HEARD ON:
26
JULY 2010
_____________________________________________________
DELIVERED ON:
5 AUGUST 2010
[1] The appellant was
convicted of housebreaking with the intent to rape and rape by the
regional magistrate
a quo
, at Welkom and subsequently
sentenced to ten (10) years imprisonment. He appealed, with due
leave of the court
a quo
, against both the conviction and the
sentence.
[2] The facts in
casu
are relatively simple. On 19 March 2006, at approximately 02H00, the
complainant and her friend, one Maria Rabete, were sleeping
in the
former’s bedroom. Whilst asleep, the bedroom door was opened
and the light was switched on. The noise occasioned
thereby awoke
the complainant, at which stage she observed the appellant in her
bedroom. He told them to be silent. Her aforementioned
friend
bolted out of the room and ran into an adjacent bedroom. The
appellant wrestled with the appellant and eventually managed
to break
away and run off to the said adjacent room. This room was occupied
by her grandmother, also referred to as the ‘old
lady’,
one Moeketsi and a few children. The appellant followed the
complainant into the adjacent room and whilst she was
in the process
of explaining to the old lady and Moeketisi the events which had just
transpired, the appellant attacked her again.
Moeketsi attempted to
intervene, whereupon the appellant stabbed him in the hand. Maria
Rabete ran away as did Moeketsi, pursuant
to being stabbed. He
locked the kitchen door from the outside in the process of exiting
the house. The physical struggle continued
between the appellant and
complainant and appellant succeed in forcing the complainant back
into her bedroom where he threw her
onto the bed and forcibly engaged
in sexual intercourse with her, without her consent.
[3] Moeketsi returned to
the house with a group of people and as they entered the house,
appellant ran off into the adjacent bedroom.
He was apprehended and
assaulted by the group of people who had just arrived. They forcibly
led him into the kitchen and when
they switched on the kitchen light
the group were shocked by their discovery of his identity and halted
the assault, at which stage
the appellant ran off and escaped from
the house.
[4] Moeketsi Mokhabela
testified on behalf of the state that on 19 March 2006, he slept in a
bedroom adjacent to that of the complainant.
The complainant’s
screaming awoke him and he observed the appellant departing from the
bedroom. Thereafter, the appellant
returned and displayed a knife,
at the same time calling the complainant. The latter then dragged
the complainant out of the bedroom.
He attempted to intervene by
standing between the two, pursuant to which, the appellant attempted
to stab him. He lefted his
hand up in self defence and was thus
stabbed in his hand in the process. The appellant fell down and he
jumped over him and ran
off in search of help. He returned with a
group of males. Upon return, he noticed that the lights had been
switched off and after
entering the house, he noticed that the
appellant was in a state of undress. The group of males apprehended
and assaulted the
appellant but he managed to escape from the house.
He admits that the appellant had no intention of stabbing him.
[5] The appellant
testified that he was engaged in a romantic relationship with the
complainant since 2005. He denied that he was
present at the
complainant’s home on 19 March 2006, asserting that he was in
Gauteng on said date.
[6] The learned
magistrate correctly evaluated the evidence of the witnesses and
concluded that the appellant’s evidence must
be rejected as
false. He cautioned himself against the dangers of uncritically
accepting evidence presented by witnesses on identification
issues.
He found the complainant’s testimony, within the context of the
issue of identification, credible and reliable.
He dismissed the
appellant’s allegation that the complainant had falsely laid a
rape charge against him, prior to the one
in
casu
, as a
blatant lie. The appellant’s legal representative, Mr Van der
Merwe, correctly conceded that the evidence against
the appellant is
overwhelming and that there is no merit in the appeal against the
conviction. The appeal against the conviction
ought to be dismissed.
[7] The appellant was 27
years of age, unmarried and the father of one child. He is possessed
of five (5) previous convictions,
namely two (2) of theft, one (1) of
robbery, one (1) of assault and one of possession of dagga.
[8] Rape is a very
serious offence. Its very foundation is based on the violent
disregard of humankind, human dignity and respect.
It violates
survivor’s right to privacy and bodily integrity. See
S
v CHAPMAN
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 345 c – d. The rape
in
casu
is exacerbated by the fact that the appellant invaded
the complainant’s home at a time when she was fragile, in that
she
was asleep in the middle of the night. He brazenly threatened
her with a knife and rape her, even though other persons were present
in the house. Their presence did not deter him from committing this
heinous crime.
[9] The magistrate,
post
a thorough analysis, correctly concluded that no substantive and
compelling circumstances exist
in causu
which necessitates a
deviation or diversion from the minimum sentence of ten (10) years
imprisonment.
[10] I am of the view
that the magistrate did not in any way misdirect himself and
furthermore that the sentence imposed in the
court
a quo
is
not shockingly inappropriate. If anything, it is a sentence which
the legislature ordained for crimes of this nature. The
magistrate
exercised his sentencing discretion judiciously and there is no
ground for this court to intervene. In fact, Mr Van
der Merwe also
conceded there is no ground or merit
in casu
wherewith to
interfere with the magistrate’s sentence. As such, the
sentence ought to be confirmed.
[11] In consequence, I
make the following order:
The appeal against
conviction and sentence is dismissed.
_______________
G. KAHN, J
I agree.
__________________
S.P.B. HANCKE, AJP
On
behalf of the appellant: Mr Van der Merwe
Instructed by:
Bloemfontein
On
behalf of the state: Adv M. Lencoe
Instructed by:
BLOEMFONTEIN
/eb