De Beer v S (A622/2007) [2008] ZAWCHC 42 (5 August 2008)

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[2008] ZAWCHC 42
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De Beer v S (A622/2007) [2008] ZAWCHC 42 (5 August 2008)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE CAPE HIGH COURT
OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
REPORTABLE
CASE NO:
A622/2007
In the matter between:
GODFREY HENRY DE BEER Appellant
and
THE STATE Respondent
JUDGMENT BY : PJ NGEWU, AJ
S
DESAI, J Agrees and it is so ordered.
H J ERASMUS, J Agrees.
For
the Appellant : Adv. J VAN DER BERG
Instructed
by : Enslin Meyer Attorneys
18
Allegro Lane
Town
Centre
Mitchell’s
Plain 7785
Ref:
E F Meyer
For
the Respondent : Adv. J VAN DER MERWE.
Instructed
by : Director of Public Prosecution
Date(s)
of hearing : Wednesday, 23 JULY 2008
Judgment
delivered : Tuesday, 05 AUGUST 2008
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Reportable
CASE NO: A622/2007
In the appeal of:
GODFREY HENRY DE BEER Appellant
vs
THE STATE Respondent
JUDGMENT: 05 AUGUST 2008
NGEWU, AJ
:
[1] The appellant was arraigned in the
Somerset-West regional court on a single charge of rape of a 10 year
old girl. After conviction
the matter was referred to this court for
consideration of an appropriate sentence in terms of
section 52(1)
of
the
Criminal Law Amendment Act, 105 of 1997
.
[2] Msimang AJ, as he then was,
confirmed the conviction and proceeded to sentence the accused to the
prescribed term of life imprisonment
as the offence falls within the
purview of
Part 1
of Schedule 2 to the
Criminal Law Amendment Act
(i.e
. rape committed where the victim is under the age of 16 years).
He found there to be no substantial and compelling circumstances

warranting deviation from the prescribed minimum sentence. The
appellant subsequently applied for and was granted leave to appeal

against both his conviction and sentence to the full Court.
[3] The appellant had pleaded not
guilty to the charge and was legally represented throughout his trial
by Ms Renchen. His defence
was a bare denial of all the allegations
against him. He only admitted being at the scene and further did not
dispute the identity
and the age of the complainant.
[4] The state led the evidence of the
complainant, P.H., that of Ms Elizabeth Isaacs and Dr Blignault, who
had examined the complainant
and completed the J88 form. The
appellant, in turn, testified in his own defence.
[5] Briefly, the evidence tendered for
the state was that the complainant and her friends were playing next
to the accused’s shack.
The friends went to the shop leaving her
behind. The appellant approached from behind and grabbed the
complainant. He placed a
hand over her mouth to stop her from
screaming. He dragged her to his shack and closed the door. He
stripped her naked and threw
her clothes into the corner of the
shack. He undressed himself to the knee level. He had caused her to
lie down and then inserted
his penis into her vagina and made up and
downward movements. She tried to scream but appellant already had the
rope which he used
to tie her mouth. She had attempted to escape when
appellant reached for the rope but he dragged her back. Aunt Emma
(i.e. Ms Elizabeth
Isaacs) walked in and found appellant lying on top
of her and pulled him off. Appellant attempted to flee but Ms Isaacs
apprehended
him. She then called the police. Complainant was taken to
the hospital by the police officers. She knew the appellant very
well.
She had seen him at Aunt Emma’s place.
[6] Ms Elizabeth Isaacs testified that
she is also known as Aunt Emma. She knew the complainant as her
deceased son went out with
the complainant’s mother. For five
years, as at the date of the incident, complainant would visit her
place everyday after school
and she would give her something to eat.
She also knew the appellant as he had stayed at her premises for a
year prior to the incident.
He had since had a shack at a corner
nearby. On the 23 November 1998, the date of the incident, P.H. had
visited her place after
school as usual. She told her to wait for a
while outside as she was still having a conversation with Mrs Martin.
When the latter
left P. was no more there and she looked for her. She
then went to look for empty bottles in the appellant’s shack and
saw appellant
lying covered with a blanket. Appellant appeared
shocked and she asked him why. The reaction of the appellant struck
her as being
very strange. She then saw a child’s legs protruding
under the appellant. She got shocked and pulled him away. She saw
that the
child was P.. She asked the appellant what he was doing and
he responded that P. had come to him. He was half naked and P. was
completely naked. She apprehended the appellant and asked her
daughter to call the police who then arrested the appellant. She and

the police officers took P. to hospital.
[7] Dr Blignault testified that she
examined the complainant on the 23 November 1998 and completed the
J88 form. Complainant presented
with redness of the vestibule,
redness in the hymen region and also redness of the labial membrane.
Her hymen was not completely
intact. She had a thick whitish
discharge. It was her finding that the above was consistent with
sexual assault or rape. The minor
child had no infection.
[8] Appellant testified that he had
drunk 4 bottles of Oom Tas wine that day and was drunk. He decided to
go and sleep in his shack.
At some point he went out to pass water.
Mrs Isaacs came and was shocked to find him drunk in those premises
as he was not supposed
to be drunk there. She then told him that he
had raped P.. He only then saw that P. was in his shack. Appellant
knew P. as a child
who frequented his neighbourhood and would play
and mingle with other children in the area. There was no bad blood
between the
two of them.
[9] In convicting the appellant the
court rejected his version as improbable and senseless. His evidence
was fraught with many flaws
and contradictions.
[10] The conviction is basically
attacked on the following bases:
The provisions of the
Criminal Law
Amendment Act were
not invoked as per charge sheet and there is no
indication that the appellant was informed of the potential life
imprisonment;
Mrs Isaacs made no mention of the
rope being tied around the complainant’s mouth;
Doctor Blignault conceded that the
injuries she noted could have been caused by means other than
penetration;
There was no blood present on the
complainant after the incident and at best appellant should have
been convicted of attempted
rape or indecent assault;
Complainant was a child and a single
witness. It is not apparent that the court
a quo
considered
the cautionary rules applicable;
Complainant’s evidence was not
clear and satisfactory in all respects.
[11] From the reading of the judgment
of the trial court, it is clear that in arriving at its decision, the
cautionary rules were
adopted and applied. It is further evident from
the record that the court properly evaluated the evidence before it
and considered
both the states’ and the defence versions. The
conclusion arrived at accounts for all the evidence. Given the
broader picture,
criticisms levelled at the state’s case are
trivial and cannot be seen as advancing the defence case in any way.
[12] From the court record it is clear
that the provisions of
section 51
of the
Criminal Law Amendment Act
were
not invoked. The accused was not alerted of the possible penal
clause upon conviction throughout the proceedings. However, this

omission alone cannot justify setting the conviction aside.
[13] Complainant testified that the
appellant inserted his penis into her vagina and made up and downward
movements. Mrs Isaac’s
version was that she found appellant on top
of the complainant who was naked and removed him. Dr Blignault’s
findings were that
the injuries the complainant sustained were
consistent with rape. There was damage to the child’s hymen. For a
conviction on
a charge of rape the slightest penetration is
sufficient. For appellant to reach the hymen of the complainant he
had to penetrate
the female organ. That there was no blood on the
complainant afterwards is of no consequence. There is no room for the
contention
that appellant should have been convicted on a lesser
charge.
[14] This Court cannot fault the
finding of the trial magistrate that the State had proved its case
beyond reasonable doubt, nor
that of the court below in confirming
the conviction. Accordingly, the appeal against the conviction must
fail.
[15] As regards sentence, counsel for
the state conceded during argument that the sentence of life
imprisonment was excessive. Moreover,
the appellant had not been
alerted of the potential sentence. It is only after conviction that
the magistrate brought to his attention
that he lacked penal
jurisdiction and was therefore referring the matter to the High Court
for consideration of an appropriate
sentence. In
S v Ndlovu
2003(1) SACR 331 (SCA)
Mpati, JA (as he then was), following the
decision of Cameron, JA in
S v Legoa 2003(1) SACR 13 (SCA)
stated
as follows:
“
And I think it is implicit in
these observations that where the state intends to rely upon the
sentencing regime created by the
Act a fair trial will generally
demand that its attention pertinently be brought to the attention of
the accused at the outset
of the trial. If not in the charge sheet
then in some other form, so that the accused is placed in a position
to appreciate properly
in good time the charge that he faces as well
as its possible consequences.
”
See also
S v Makatu 2006(2) SACR
582 (SCA).
[16] It is trite that
section 51(2)
read with
Part 1
of Schedule 2 of the
Criminal Law Amendment Act,
renders
the appellant, as a first offender, liable to life
imprisonment unless there are substantial and compelling
circumstances which
justify the imposition of a lesser sentence. In
arriving at a conclusion that there were no such circumstances, the
court below
rejected as irrelevant the mitigating factors that:
The appellant was a first offender,
he spent more than 2 years in
custody awaiting trial
relying on the decision of
S v
Malgas.
[17] In my judgment, the Judge
a
quo
misdirected himself in that regard. In
S v Malgas 2001(1)
SACR 469 (SCA)
Marais, JA set out the criteria that should be
taken into account or ignored in deciding whether substantial and
compelling circumstances
exist which justify the imposition of a
lesser sentence than the prescribed one as follows:
A court has to consider all the
circumstances of the case, including the many factors traditionally
taken into account by courts
when sentencing offenders (i.e. both
mitigating and aggravating factors)
For circumstances to qualify as
substantial and compelling they need not be exceptional in the
sense of seldom encountered or
rare, nor are they limited to those
that diminish the moral guilt of the offenders
Generally, the legislature
aimed at ensuring a severe, standardized and consistent response
from the courts unless there were,
and could be seen to be, truly
convincing reasons for a different response
In other words, the prescribed
sentences are to be regarded as generally appropriate for the crimes
specified and should not be
departed from without weighty
justification for doing so
Where the court is convinced,
on a consideration of all the circumstances, that an injustice will
be done if the minimum sentence
is imposed, it is entitled to
characterize the circumstances as substantial and compelling.
Thus, the trial court is still vested
with a discretion whether to apply or deviate from the minimum
sentence prescribed.
[18] In this case the following can be
noted as mitigating factors:
The appellant is a first offender
As at the time of the commission
of the offence he was 43 years old, and has thus managed to lead
a clean life
He is capable of rehabilitation
No excessive violence was used in
the commission of the offence
The rape was not the most serious.
[19] The following are aggravating
factors:
The appellant was well known to the
complainant and was in a position of trust to her.
The appellant who was aged 43 raped a
10 year old girl.
The traumatic consequences of the
offence may manifest later on in complainant’s life.
Complainant had to attend counseling
sessions.
By its nature, rape is a very serious
offence.
Complainant was particularly
vulnerable.
[20] From the above it is clear that
aggravating factors far outweigh the mitigating factors. Be that as
it may, this court is of
the view that the following constitute
substantial and compelling circumstances in this case:
The appellant is a first offender at
the age of 43.
The likelihood that he would embark
on similar crime is minimal.
The rape was not complete.
No real violence was applied to the
minor child.
Appellant spent more than 2 years in
custody, awaiting trial.
The appellant was not advised of the
possibility of the sentence of life imprisonment.
[21] The interests of society demand
that rapists be removed from free society. Having cumulatively taken
into account all the relevant
sentencing factors, it is the view of
this court that a sentence of life imprisonment is exceedingly
inappropriate. A sentence
of 15 years imprisonment would send a
strong deterrent message to the community.
[22] I would therefore make the
following order:
The appeal against conviction is
dismissed and the conviction is confirmed.
The appeal against sentence
succeeds.
The sentence of life
imprisonment is set aside and is substituted with the following:
“
The accused is sentenced to undergo
15 years imprisonment. In terms of
section 282
of Act 51 of 1977 it
is ordered that the sentence is backdated to 19 July 2001”.
PJ NGEWU, AJ
I
agree and it is so ordered.
S DESAI, J
I
agree.
HJ ERASMUS, J