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[2008] ZAWCHC 157
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Davids v S (A392/2006) [2008] ZAWCHC 157 (7 March 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A392/2006
DATE
:
7
MARCH 2008
In the matter between:
WAYNE
DAVIDS
AppeElant
and
THE
STATE
Respondent
JUDGMENT
MOTALA,
J:
[1]
Appellant was charged in the Regional Court with two counts. On count
1 he was charged with housebreaking with intent to commit
an offence
unknown to the State. On count 2 he was charged with attempted rape.
He pleaded not guilty on both counts. He was found
guilty on count 1
of housebreaking with intent to commit kidnapping and kidnapping. He
was sentenced to 12 years' imprisonment
on that count. On count 2 he
was found guilty of indecent assault and for that he was sentenced to
one year's imprisonment. He
appeals against both the
convictions and the sentences.
[2]
It has been submitted by appellant's counsel that the magistrate
erred in several respects during the trial. Firstly, he allowed
leading questions to be put to the complainant who was eight years
old when she testified. He also repeatedly inhibited the appellant
from highlighting what he alleged were discrepancies or
inconsistencies between what was said in court and what was said in
statements
to the police. He even went so far as to say that the
appeliant, who was not legally represented, should concentrate on the
evidence
in court and not on the statements to the police. He
certainly did not assist the appellant in any respect.
[3]
Quite clearly, the conduct of the magistrate fell short of what is
expected of a judicial officer who is trying an undefended
accused.
However, it is trite that not every irregularity or misdirection
leads to a trial being vitiated. The question that arises
is whether
we can find that on the evidence unaffected by the irregularities I
have mentioned, the State has proved its case beyond
a reasonable
doubt.
[4]
A decisive fact in this matter is that it was common cause that the
complainant, Synomia de Swardt, who was six years old at
the time,
was found that night in appellant's room. Her father, Donovan Tony,
testified that on receiving a report while in bed,
he dressed quickly
and went to search for Synomia He found her in the appellant's room,
on appellant's bed. She was fully dressed.
He said appellant was also
on the bed. He was naked. Appellant admitted that Synomia was found
in his room on his bed, however
he denied being naked and said he was
lying on a mattress on the floor.
[5]
Appellant testified that on his way home at about midnight he met
Synomia in the street. He called out for her parents but received
no
response. He then took her home. Synomia testified that she and two
other children, Marilyn aged 12 and Quinton aged 9, were
asleep. She
said that appellant came to their room and fell on top of her and
then carried her to his room at his grandmother's
house. He undressed
himself and asked her to undress but she refused. He threatened to
stab her. He then rubbed her vagina. She
said he was drunk. Marilyn
confirmed that evidence in material respects.
[6]
Bettie Tony, Synomia's grandmother, testified that she lived in a
brick house. Alongside it was what seems to be a wooden structure
where the children slept. That night she checked that the children
were inside that annexe and that the door was firmly shut. She
said
that the door can, however, be forced open. She said that her
husband, Jim Mahlasela, and Marilyn made a report to her and
she sent
an urgent message to Donovan Tony, Synomia's father. She said also
that the door to the annexe was broken, it had earlier
been in good
condition.
[7]
The evidence of appellant that a six year old child was left standing
in the street while her father and grandparents were safely
asleep in
their bed cannot be reasonably and possibly true. On the other hand,
the evidence of the complainant, of Marilyn, of
the complainant's
father and grandmother and of Jim Mahlasela is overwhelming - that
the appellant took the complainant from her
bed to his room.
[8]
I turn now to the appeal against sentence. A perusal of the reported
decisions on what is an appropriate sentence for kidnapping
reveals,
as one would expect, that a wide range of sentences have been
imposed. In S.
v
F
1983(1) SA 747 (O) in which, as the magistrate correctly pointed out,
the facts were broadly similar to the facts in this case,
the accused
was sentenced in the Magistrate's Court to a fine of R500 or six
months
1
imprisonment.
The Court of appeal increased the sentence to 12
months' imprisonment of which six months were suspended.
In
S
v Levy & Another
1967 (1) SA 351
(W) a woman and her baby were kidnapped and held
until a large ransom was paid. A sentence of 16 years' imprisonment
was imposed.
In
S
v Naidoo
1974(3) SA 706
{AD),
a
case referred to by the magistrate, a child was kidnapped and held
for ransom. Sentences of eight years and nine years' imprisonment
were confirmed by the then Appellate Division. Two other persons
involved in the matter were sentenced to two years' and four years'
imprisonment. Reference may also be made to S
v
Morgan & Others
1993(2) SACR 134 (A) and
S
v Fraser
2005(1)
SACR 455.
[9]
The conduct of the appellant on that night clearly indicates that he
did not plan or think through what he was doing. He took
the
complainant in the presence of an older child Marilyn who, as would
have been expected by anyone in his sound and sober senses,
duly
raised the alarm. He then took the complainant to his grandmother's
house where he would clearly expect to be found, as indeed
he was.
His conduct can only be explained on the basis of his intoxication.
His grandmother, Rose Titus, who displayed no bias
towards him in
that she did not corroborate his testimony in material respects said
he was so drunk that he could not hold the
plate of food she gave
him. She said she had to help him carry the plate to his room. He was
clearly, in her words, "hopeloos
dronk, hy het nie geweet wat
rondom horn aangaan nie". Furthermore there was no evidence that
he tried to rape Synomia.
[10]
Appellant has several previous convictions, including convictions for
assault and one for rape. Although he was a juvenile
when convicted
of rape and nearly 10 years have passed before he committed the
present offences, his record must be given some
weight. Of greater
importance, however, is that there is an epidemic of violent crimes
against and molestation of females of all
ages.
[11]
Taking all the circumstances into account, a substantial period of
imprisonment is the only appropriate sentence. However,
in my view,
an effective sentence of 13 years is disturbingly inappropriate. In
my view, as the two offences were so closely related
I would take the
two offences together for purposes of sentence and impose a sentence
of seven years' imprisonment.
BUDLENDER,
AJ
:
I agree.
BUDLENDER,
AJ
MOTALA,
J
:
The appeal against the conviction is dismissed and the conviction is
confirmed. The appeal against sentence succeeds, the sentence
imposed
is set aside and substituted by the following:
"The
accused is sentenced to seven years' imprisonment".
MOTALA,
J