Tladi v S (A508/2008) [2009] ZAGPJHC 51 (21 September 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2009
>>
[2009] ZAGPJHC 51
|

|

Tladi v S (A508/2008) [2009] ZAGPJHC 51 (21 September 2009)

SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NUMBER A508/2008
21 SEPTEMBER 2009
In
the matter between
PAPIKI
JOHANNES TLADI APPELLANT
and
THE
STATE RESPONDENT
______________________________________________________________
J U D G M E N T
VAN
OOSTEN J:
[1] The appellant was convicted of
the rape
read
with the provisions of s 51 (1)(b) of the Criminal Law Amendment Act
105 of 1997 (the Act)
in
the regional court sitting in Randfontein and sentenced to life
imprisonment. It was further ordered that the appellant not be
considered for parole prior to him having served at least 25 years
imprisonment. The appellant has exercised his automatic right
of
appeal against conviction and sentence which is the appeal before us.
[2] I shall first deal with the
conviction. It is not in dispute that the appellant and the
complainant, M T, who at the time of the
incident was 18 years of
age, had known each other at the time of the incident and that sexual
intercourse had occurred during the
night of 5 April 2008. The
complainant’s consent to sexual intercourse or the absence thereof
was the principal issue both in the
court
a
quo
and on appeal.
[3] A brief summary of the
complainant’s evidence is the following. During the evening of the
incident the complainant and her friends
attended a tavern. On their
way home the appellant who was at the back of the group called the
complainant and accused her of spreading
the rumour that he was HIV
positive. She denied having done that. He held her by her jacket and
her friend, Zama by the hand and
took them both to an open veldt.
There he assaulted Zama and then chased her away. Zama left and the
appellant ordered the complainant
to walk on. She refused. She
screamed and he tripped her which caused her to fall down. He put his
hand on her mouth and dragged
her to a tree. He ordered her to
undress. She decided to oblige. He again tripped her and she fell
down on her jacket which the appellant
had spread open on the ground.
He undressed and raped her. He then took her to his own house where
he again raped her thrice: twice
while she was lying on his bed and
once on the floor. In between she urinated on his bed and he slapped
her through the face. He
told her not to say anything about the rape
and unlocked the door to allow her to go. She ran to her house and
reported the rape
to her mother. Her mother as well as her uncle and
brother who were also there knew the appellant and they went
searching for him.
Having found him he was confronted with the
allegations of rape but denied having raped the complainant and told
her mother that
they had had a love relationship for the past six
months and that this had not been the first time for them to have
sexual intercourse.
[4] Two further witnesses were called
by the State to testify: firstly, Zama Nxumalo, the friend of the
complainant I have earlier
referred to, and, secondly, her mother S
T. I do not consider it necessary to traverse their evidence. Suffice
to say that their
evidence, on all material aspects fully
corroborates the version of the complainant.
[5] This brings me to the version of
the appellant. He admitted having had sexual intercourse with the
complainant twice on the day
of the incident. Not only did she
consent thereto he said, she in fact seduced him to have sexual
intercourse. The starting point
is to consider the medical evidence
set out in a so-called J88 from, the contents of which was admitted,
and which was handed in
by consent. It effectively draws a line
through the version of the appellant. Firstly, the report confirms
the complainant’s evidence
that she was a virgin. The appellant’s
version that they had been involved in a sexually active relationship
for six months prior
to the rape therefore is clearly an untruth.
Secondly, serious injuries to the complainant’s private parts were
detected upon examination,
which led to the conclusion by the medical
practitioner that ‘clinically there is evidence of forced genital
penetration’. Neither
the injuries nor the conclusion I have
referred to can be reconciled with the appellant’s version of
consensual intercourse. Nor
can the complainant’s conduct of
reporting the rape after the incident in any way be reconciled with
consensual intercourse. The
evidence overwhelmingly established that
she was raped. The contentions raised on behalf of the appellant
before us all endeavoured
to advance speculative alternatives the
complainant could have followed to escape being raped or to raise
alarm. The arguments are
without merit and certainly overlook the
intimidation of a much older male dominant person over a defenceless
young woman subdued
to the relentless aims of sexual self
gratification. The appellant’s evidence of consensual intercourse
was rightly rejected by
the court
a
quo
as false. For these
reasons the conviction must stand.
[6] I turn now to the sentence of life
imprisonment. Section 51 of the Act provides:
51.   Discretionary
minimum sentences for certain serious offences.
—
(1)  Notwithstanding any
other law, but subject to subsections (3) and (6), a regional court
or a High Court shall sentence
a person it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for life.
Part
1 of Schedule 2 reads
Rape
as contemplated in
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
1
-
when
committed-
in
circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice.
In the present matter the complainant
was raped on four separate occasions. The minimum sentence
provisions I have referred to accordingly
are of application. The
principles laid down in
S v
Malgas
2001 (1) SACR 469
(SCA) in the approach to sentencing under the Act are
well-entrenched. In
S
v Vilakazi
2009 (1) SACR 552
(SCA)
para
[15] Nugent JA in dealing
with
the requirement of substantial and compelling circumstances, held:
It
is clear from the terms in which the test was framed in
Malgas
and
endorsed in
Dodo
that
it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence.
The facts of this matter reveal a rape
of extreme seriousness.
Not
only was the complainant’s privacy and personal integrity violated,
she suffered serious psychological as well as physical harm
in the
process. The professional pre-sentence report indicates the extent to
which the complainant has been psychologically injured.
The
significance of the emotional impact of the rime on her is apparent
from sleepless nights she experienced for several weeks after
the
incident and the help and assistance she sought and received in
counselling from her teacher. Her school performance deteriorated
as
did her interaction with friends resulting in her having become
withdrawn. More positively she tested negative for HIV Aids and
has
since become interactive with other victims of rape. She sustained
physical injuries to her hip and face consistent with her
evidence
that she was dragged for a considerable distance and hit in the face
by the appellant. She lost her virginity. The rape
caused much pain
to her private parts. The medical examination conducted some 14 hours
after the rape confirmed loss of virginity
and further revealed
serious internal gynaecological bruising and injuries from which she
was still bleeding.
[7] The appellant’s personal
circumstances can be gleaned from the pre-sentence report. At the
time of the commission of the offence
the appellant was 31 years of
age. He is a first offender. He did not have the benefit of a
sophisticated background. He left school
after finishing grade 7 and
thereafter earned an income as a farmer’s assistant and hiring out
his services as a painter and plumber.
Although the appellant is not
married he maintained two dependant children from different mothers.
The probation officer who compiled
the pre-sentence report set out
that pursuant to an investigation into the personal circumstances of
the appellant, he showed no
remorse and expressed anger at the
complainant who he maintained had betrayed him.
[
8]
It is hardly necessary to emphasise the seriousness of the crime of
rape. The facts of this matter show an appalling and perverse
abuse
of male power. Rape is not merely a physical assault it is often
destructive of the whole personality of the victim. It strikes
a blow
at the very core of our claim to be a civilised society. The
community is entitled to demand that those who perform such perverse
acts of terror be adequately punished and that the punishment reflect
the societal censure. In the much quoted judgment of Mahomed
CJ in
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) 345D-E the learned Judge held that:
The
courts are under a duty to send a clear message to the accused in
rape cases, to other potential rapists and to the community
that the
courts are determined to protect the equality, dignity and freedom of
all women, and they will show no mercy to those who
seek to invade
those righ
t.
T
he
appellant indicated scant regard for the dignity of his victim. He
deprived her of her freedom of movement for a considerable time.
He
used violence towards her in a most derogatory manner. The absence of
more serious physical harm the appellant could have inflicted
in my
view is not worthy of consideration. The appellant must be sentenced
for the crime he has committed, after due consideration
of all the
relevant circumstances, in respect of which speculative consequences
of what the appellant could have done are of little
relevance. Having
again considered the well-known triad in the sentencing process I
remain unpersuaded that anything has been shown
to permit the
appellant to escape the extreme penalty of the law. No misdirections
were committed by the court
a
quo
nor is the sentence disproportionate to the crime. Any lesser form of
punishment in the circumstances of this case in my view, would
render
the justice system of our country suspect.
[
9]
The magistrate as part of the sentence imposed a non-parole period of
25 years.
Section 276B
of the
Criminal Procedure Act 51 of 1977
empowers the court as part of the sentence, in the event of
imposition of a sentence in excess of two years, to fix a non-parole
period not exceeding two thirds of the term of imprisonment imposed
or 25 years, whichever is the shorter. In
S
v Williams; S v Papier
[2006] ZAWCHC 5
;
2006
(2) SACR 101
(C) para [15] it was held that the provisions of
s 276B
should be applied in exceptional circumstances only. The question
arising is whether the fixing by the court of a non-parole period
where life imprisonment is imposed, is proper. The
Correctional
Services Act 111 of 1998
provides for the length and form of
sentences.
Section 73(1)(b)
provides that a prisoner sentenced to
life imprisonment remains in prison for the rest of his or her life.
Section 73(6)(b)(iv)
further provides that a person sentenced to life
imprisonment may not be placed on parole until he or she has served
at least 25
years of the sentence. The minimum length of life
imprisonment (except where the prisoner reaches the age of 65 years)
accordingly
is 25 years. The non-parole period applicable in regard
to the sentence imposed on the appellant in terms of this section of
the
Act, therefore is 25 years. In view of the statutory provisions
it was neither necessary nor did the court
a
quo
have the power to fix the non-parole period of the sentence. It
follows that the ordering of the non-parole period must be set aside.
[10] In the result the following order
is made:
The appeal against conviction and
sentence is dismissed.
The order of the
court
a
quo
fixing the non-parole period of the sentence at 25 years is set
aside.
_______________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
__________________________
WH TRENGOVE
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPELLANT Ms F
JOSLIN
APPELLANT’S ATTORNEYS JHB
JUSTICE CENTRE
COUNSEL FOR THE RESPONDENT ADVG
MARKET
DATE OF HEARING 21
SEPTEMBER 2009
DATE OF JUDGMENT 21 SEPTEMBER
2009
1
3.   Rape.
—Any
person (“A”) who unlawfully and intentionally commits an act of
sexual penetration with a complainant (“B”), without
the consent
of B, is guilty of the offence of rape.