Radebe v S [2006] ZAFSHC 72 (1 June 2006)

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[2006] ZAFSHC 72
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Radebe v S [2006] ZAFSHC 72 (1 June 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A358/2004
In
the matter between:
TUMELO DANIEL
RADEBE
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MATHEBULA, AJ
_____________________________________________________
JUDGMENT:
MATHEBULA, AJ
_____________________________________________________
HEARD ON:
13 MARCH 2006
_____________________________________________________
DELIVERED ON:
1 JUNE 2006
_____________________________________________________
[1] The appeal lies
against sentence. The appellant pleaded not guilty before the
regional magistrate, Phuthaditjhaba on a charge
of rape. During the
course of the trial in the court
a
quo
the
appellant changed his initial plea of not guilty to one of guilty.
He was convicted and sentenced to 15 years imprisonment.
The
appellant was sentenced in terms of
section 51(2)(a)(ii)
of the
Criminal Law Amendment Act no. 105 of 1997
which prescribes sentences
of not less than 15 years imprisonment for a second offender on a
charge of rape. The sentence can only
be lesser if there exists
substantial and compelling circumstances. The court
a
quo
found that there were no substantial and compelling circumstances and
imposed the sentence as per the provisions of the Act.
[2] The facts are broadly
that on or about the 31
st
March 2002 at Mandela Park, Phuthaditjhaba, the appellant raped M,
who was 16 years at the time. The appellant assaulted the
complainant
before having sexual intercourse with her.
[3] At the time of the
commission of this offence the appellant was an awaiting trialist in
the care of his guardian on a similar
charge. The other offence was
committed on the 9
th
December 2001. He was sentenced to 10 years imprisonment on that
charge. At the time of his conviction and sentence by the court
a
quo
on
this matter he was serving the second month of the 10 years sentence.
[4] It was submitted by
Mr. Nkhahle, on behalf of the appellant, that the sentence imposed
was harsh and inappropriate. Furthermore
that the appellant pleaded
guilty. He emphasised that the appellant was 17 years at the time of
the commission of the offence thus
the element of youth played a
pivotal role. He further submitted that due to the time elapse
between the two offences the court
a
quo
should have ordered that the sentences run concurrently.
[5] On behalf of the
State, Mr. S. Chalale, submitted that the objective gravity of the
crime played an important role. The appellant
was in a trust
position
vis-a-vis
the complainant who was his family member. In addition the victim
was a virgin at the time. The appellant used force against the
victim. He submitted that the sentence imposed was appropriate in
the circumstances.
[6] Evaluating the matter
I am not convinced that the court
a
quo
erred in not finding substantial and compelling circumstances. The
sentence of 15 years is inappropriate.
“
Rape is a very serious offence,
constituting as it does a humiliating, degrading and brutal invasion
of the privacy, the dignity and
the person of the victim.”
See
S
v CHAPMAN
[1997] ZASCA 45
;
1997 (2) SACR 3
at 5 A – B.
[7] However, punishment
is not the only purpose of a sentence. In dealing with young people,
the court must as far as possible punish
with a point of view of care
and rehabilitation. See
S
v NKOSI AND ANOTHER
2000 (2) SACR 94
T. The appellant committed these offences within
three months of each other in the same municipal district. I fail to
understand
why the charges were not consolidated in to one matter
with a number of counts. The appellant will only serve the 15 years
imprisonment
after he had served the first 10 years of the earlier
sentence. This will result in the appellant serving a severe and
unjustifiably
long sentence. See
S
v BREYTENBACH
1988 (4) SA 286
(T) at 292 G – J.
[8] The court
a
quo
did
not even give a cursory look at section 280 of the Criminal Procedure
Act no. 51 of 1977 (as amended). I am of the view that
the sentence
is harsh and inappropriate. The court
a
quo
erred in treating the appellant as a second offender. He ought to
have sentenced him in terms of section 52(1)(a)(i) and not
section
52(1)(a)(ii) as he did. On account of his misdirection I am at
liberty to interfere with the sentence imposed by the court
a
quo.
[9] I
make the following order:
Conviction is confirmed.
The sentence of 15
(fifteen) years imprisonment is set aside. It is substituted with
one of 10 (ten) years imprisonment.
In terms of
section 280
of the
Criminal Procedure Act the
sentence of 10 (ten) years will
run concurrently with the 10 (ten) years’ sentence imposed on the
11
th
March 2003 so that the effective sentence is 15 (fifteen) years
imprisonment.
___________________
M.A.
MATHEBULA, AJ
I concur.
______________
M.H. RAMPAI, J
On
behalf of the appellant: Adv. R. J. Nkhahle
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Chalale
Instructed
by:
The
Director:
Public Prosecutions
BLOEMFONTEIN
/em