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[2008] ZAWCHC 194
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Simana v S (A405/2006) [2008] ZAWCHC 194 (9 May 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A405/2006
DATE:
9
MAY 2008
In
the matter between:
LUBALALO
SIMANA
Appellant
and
THE
STATE Respondent
JUDGMENT
N
C ERASMUS, J
:
[1]
The
appellant was convicted in the Regional Court on one count of rape
and sentenced to 10 years' imprisonment. It was alleged
and so found
by the trial Court that he raped a 56 year old woman whilst he at
the time was 18 years old.
[2]
His defence at the trial was that he placed identity in dispute. The
magistrate gave a well-reasoned judgment dealing with
all the
evidence and made credibility findings It is noteworthy that at the
trial, counsel for the defence conceded the Sack
of credibility on
the side of the appellant. The victim knew the appellant well
r
one could say that he grew up in front of her seeing that she says
she knows him for six years and he was 18 at the time so she
must
have known him from about 12 years old.
[3]
I am satisfied that on the judgment of the magistrate, which is a
true reflection of the record, that he did not misdirect
himself in
any way. In any event, when a court of appeal deals with
credibility, the Court will not easily interfere with such
findings.
On the merits of the conviction, I believe, there is no merit in the
appeal.
[4]
On sentence, the magistrate noted all the factors that he should
take into account, correctly, in my view
r
and correctly came to the conclusion that there were compelling and
substantial circumstances to deviate from the prescribed
sentence of
10 years. For some or other reason which is not clear from the
record, the magistrate still imposed the minimum sentence.
[5]
Having regard to all the factors enumerated by the magistrate and
the fact that the appellant had spent some time in prison
as an
awaiting trial prisoner, not being able to raise the R1 000 bail
that was set
h
I am of the view that we are at large to interfere with the
sentence
Sitting
as a
Court
of first instance
I
would
have
imposed a sentence of seven years' imprisonment.
[6]
in the circumstances, I would dismiss the appeal against the
conviction, set the sentence aside and replace it with a sentence
of
seven years' imprisonment.
ZONDI,
J
:
I concur.
ZONDI,
J
N
C ERASMUS. J
:
It is so ordered. The Registrar is requested to immediately write
the order and ensure that it is delivered to the appeals clerk
downstairs to be transmitted to Drakenstein Prison where the
appellant is currently being held as I am sure that his release
might be affected by this order almost immediately.
N
C ERASMUS. J