Ntuli v S [2006] ZAFSHC 164 (2 November 2006)

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[2006] ZAFSHC 164
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Ntuli v S [2006] ZAFSHC 164 (2 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A17/2006
In the appeal between:
TIM JONILE NTULI
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
VAN
ZYL, J
_____________________________________________________
JUDGMENT:
RAMPAI, J
HEARD ON:
23 OCTOBER 2006
_____________________________________________________
DELIVERED ON:
2 NOVEMBER 2006
_____________________________________________________
[1] The appellant was
accused of indecent assault in the Bloemfontein Regional Court where
he was found guilty as charged and sentenced.
He now comes on
appeal, with the leave of the court below, against both the
conviction and the sentence.
[2] He initially faced
two counts of indecent assault. The first count was that he
indecently assaulted Matshediso Mathafeni here
in Bloemfontein on the
28
th
October 2004 by touching her breasts. The second count was that he
indecently assaulted the same lady again on 9 December 2004 in
the
same manner.
[3] He pleaded not guilty
to both of counts of indecent assault. At the end of the state case,
the defence applied for his discharge.
In terms of section 174, Act
No. 51/1977 he was discharged in respect of the first count.
[4] At the end of the
trial the appellant was found guilty in respect of the second count.
On the same day the 11
th
April 2006 he was sentenced to 2 years imprisonment of which 6 months
was conditionally suspended for 5 years. It is against such
conviction and sentence that he came on appeal.
[5] The version of the
prosecution was narrated by 3 witnesses, namely: Ms Matshediso
Mathafeni, the victim; Mr. K. A. Mathafeni,
her father and Mr. M.
Booi, her fellow worker. The victim was the only eye-witness to the
incident. I shall briefly recount her
testimony.
[6] She testified that
she, the appellant and Booi were on duty on the 9
th
December 2004. They were all doing a night duty at Vodacom Building.
She and Booi were employed by Securicor whereas the appellant
was
employed by another security company, Defensor. At one stage she
took a walk to the toilet. On her way she saw the appellant
sitting
on a chair in the passage. She was on the verge of passing him when
he touched her breasts. She took exception to what
he did to her.
The appellant’s response was that he was merely greeting her. She
registered her protest against the alleged way
of greeting. She then
proceeded to the toilet.
[7] On
her way back the appellant was still in the passage. As she was
about to pass him, he once again touched her breasts. She
again
confronted him about his actions. On this second time around the
appellant’s excuse was that he was merely playing with
her. She
sternly objected and let him understood in no uncertain terms that
she had never played with a male in that way.
[8] The same night she
reported the incident to her supervisor, a certain Mr. Meyers. Booi
heard when she reported the incident.
Early the next morning,
accompanied by her father, she reported the incident to the police.
Besides Meyers, who did not testify,
the other two gentlemen
confirmed the victim’s report to them.
[9] The version of the
defence was narrated by the applicant himself. He testified that he
was employed by an enterprise called Defensor
(Pty) Ltd as a security
guard. On the 9
th
December 2004 he was on duty at Vodacom. He knew the complainant.
On the day in question she, like him, was stationed at Vodacom.
As
far as he was concerned there was no incident. He was sitting on the
chair in the corridor a short distance from the toilet.
He sat there
because it was cold outside. He chose the particular spot so that
his supervisor could readily noticed him. While
he was sitting there
he saw the complainant. There was an exchange of cordial greetings
after which she passed him, walked away
and carried on with her
patrol duties.
[10] He
denied that he touched the complainant’s breasts at all. He denied
that he subsequently admitted touching her breasts to
a certain Mr.
Meyers. He denied ever making such an admission to Mr. Mathafeni.
He also denied that he offered R500,00 to the complainant
in an bid
to induce her to drop the charges. But he admitted that he asked her
through her father to withdraw the case because they
were not sure
about the alleged incident.
[11] The magistrate
considered the two conflicting versions. He then came to the
conclusion on the one hand that the appellant’s
version was not
reasonably and possibly true and thus he rejected it. On the other
hand he also came to the conclusion that the
version of the victim as
supported by the other two witnesses proved beyond reasonable doubt
that the appellant was guilty in respect
of the second charge.
[12] Mr. Steenkamp,
counsel for the appellant, argued that the court
a quo
misdirected itself in reaching the aforesaid conclusion in that it
failed to take cognisance of certain aspects of the evidence and
in
that it did not apply the cautionary rule properly. But Ms.
Ferreira, counsel for the state, disagreed. She submitted that the
court
a
quo
properly considered all the evidence in its totality and that it
correctly applied the cautionary rule.
[13] The first aspect of
the critique, Mr. Steenkamp levelled against the complainant relates
to her conduct at the time of the incident
on the night of Thursday
the 9
th
December 2004. He argued that it did not seem that the complainant
physically tried to protect herself or physically tried to prevent
the appellant from touching her breasts again. Counsel described the
complainant’s conduct during the incident as a rather mild
reaction.
[14] The
complainant walked up the stairs inside the building. At the top of
the stairs she came into the passage. She was on her
way to the
ladies bathroom. She turned right towards the bathroom. The
appellant was sitting on a chair in the passage. He was
largely
obstructing the passage. There was no enough space for her to pass
him. From her evidence it is clear that she was approaching
him from
the side; that there was apparently no space behind him for her to
pass; that there was some little space in front of him
for her to
pass; that even there she could hardly pass walking forward in a
normal way; that she had to walk sideways but facing
him in order to
pass him. Behind him there was a wall and behind her there was a
wall. Therefore they were facing each other immediately
prior to the
first touch. She demonstrated all this during her
cross-examination.
[15] Initially Mr.
Theron, the defence attorney, had suggested to the complainant that
it was practically impossible for the appellant
to have touched her
two breasts with his hands while he was sitting on a chair and she
was standing on her feet and passing her on
his side. However, after
the demonstration the defence attorney, got a vivid picture of what
happened. He realised that she had
to slow down, adjust her normal
straight forward walking pattern, and adopted a grab-like mode of
locomotion until she came face
to face with the man who had forced
her to walk in such an awkward manner in order to reach the bathroom.
Everyone, it seems to
me
ex
facie
the record realised, after the demonstration that there was nothing
impossible about the touching of the complaint’s breasts by
the
appellant in the manner as alleged by the complainant.
[16] Mr.
Theron abandoned that line of attack. In throwing in the towel he
said to the complainant:
¡°
So
you did not pass the accused in his side, you passed in front of the
accused?”
The answer to the
question was was a resounding: “Ja”. There is no evidence on
record to suggest that the complainant was so
tall, that the
appellant’s chair was so flat or his arms so short that he simply
could not have reached her breasts while he was
sitting down and she
standing. I can find nothing strange about the appellant’s reach
in those circumstances.
[17] Mr. Steenkamp found
it even more surprising that the appellant could have succeeded in
doing it a second time. It must be borne
in mind that the second
touch of the breasts cannot be isolated from the first. During the
first encounter the complainant made
it perfectly clear to the
appellant that he should stop greeting her by touching her breasts.
She pointed out to him that it had
never happened in her past and
that it must never happen again in the future. Having made her
stance so clear to him, she then proceeded
to the bathroom.
[18] I
get the impression that she came out of the bathroom without
suspicion that the appellant would again touch her breasts. On
her
way back he was still sitting in an obstructive manner. Perhaps it
may be argued that his obstructive stance should have signalled
to
the complainant that the appellant was still up to his old tricks.
However, it must be borne in mind that she had just given
the
appellant a stern warning that his unbecoming behaviour was
absolutely unacceptable to her. Moreover, he had just given her
a
positive assurance that he would not repeat the objectionable breast
touching actions. It seems to me that she expected the obstructive
man at least, to keep his word.
[19] In my view, it
cannot be seriously contented that she behaved in a very strange
manner by failing to prevent the second touching.
There appears to
be no evidence as to how quickly the breasts touching acts were
executed. Since the assault was not imminent the
complainant did not
really anticipate it. It is therefore perfectly understandable why
she did not quickly react to physically repel
the attack. She was
not in a defensive mode because she did not timeously detect that the
appellant was again in an offensive mode.
I cannot accept the
contention that her alleged rather mild reaction suggested that she
must have let the appellant touch her breasts
because she welcomed
the touching.
The complainant’s
spontaneous and firm remarks soon afterwards demonstrated that the
second touching of her breasts was just as
unwelcome as the first.
She told the appellant in a firm and disapproving manner that she did
not play with men in that fashion.
[20] The
magistrate was mindful and alive to the cautionary rule in respect of
a single witness. This is borne out by the following
passage
extracted from his judgment:
¡°
The
complainant was as single witness and I have approached her evidence
with the caution dictated by that circumstance. The need
for
question (caution) in assessment of her evidence is heightened by the
fact that accused says this a fabrication. I must point
out that
there is no real criticism as regards the manner in which she
testified. Her evidence was good in all material aspects.”
(the bracketed word
is mine)
[21] The victim alleged
that the appellant did no more than touch her breasts. He did not
squeeze them. He did not fondle her.
She was irritated but not
shocked. She was hurt but not distressed. She did not hysterically
have to extricate herself because
she was not entangled in his arms.
She did not have to run away in tears from the scene down the stairs
to the surveillance chamber.
The distressed emotional state of the
complainant is a factor which can be taken into account in certain
circumstances as corroboration
of the victim’s complaint.
S
v HAMMOND
2004 (2) SACR 303
(SCA) at paragraph 21 per Cloete JA. In the
instant case, however, there was no evidence of the victim’s
emotional distress.
The court
a quo
quite correctly, in my view, did not rely upon her emotional state as
a corroborative factor.
[22] In this case a great
deal of the critique levelled against the victim’s version by the
counsel for the appellant concerned
the reporting of the complaint.
It is so that according to the victim she did not report the incident
to Mr. Booi, her colleague,
who was doing a night shift with her on
the 9
th
December 2004. Quite contrary to this Booi testified that the victim
did report the incident to him.
[23] The
exchange between the defence and the victim as regards the reporting
went like this:
“Booi
was working on that specific day, correct? --- Ja, your worship.
You did not report this matter to him,
correct? --- I did not.
Why
not? --- Because the supervisor came.
And you reported it to him. --- (Not
replied, intervenes) Was this the only time you reported to the
supervisor these incidents?
Was this the first time on the 9
th
of December that you reported it to him? ---- Ja.”
[24] Sometimes words may
mean different things to different people. In my experience the two
verbs “to report” and “to tell”
are at times understood by
certain witnesses to mean two different concepts. I have on
occasions heard victims in sexual cases saying
they did not report a
rape incident to their friends or to their mothers but that they
reported it to the police. Then the same
witnesses would then
proceed to say that they did not tell the police about it but that
they only told their friends and mothers
about it. The word “report”
has some official connotations to some people.
[25] The exchange between
Ms. Plaatjies, the prosecutor, and the witness Booi illustrates the
point well.
¡°
Can
you
tell
the court about the report the complainant made to you on that day?
--- She
told
me that whilst she was on patrol, and after finishing the patrol, se
was on her way to the bathroom and then Tim touched her where
he was
not supposed to touch her.”
[26] Now the salient
principle of our law is that a complaint pertaining to an incident of
a sexual nature must have been made, without
undue delay but at the
earliest possible opportunity which, in all the circumstances of a
particular case, could reasonably be expected
to the first person to
whom the victim could reasonably be expected to confide in order to
be admissible as evidence.
R
v C
1955 (4) SA 40
(NPD) at 40 G – H per Caney J. The learned
magistrate correctly applied this principle in my view.
[27] It is common cause
in the instant case that Booi was a security guard just like the
victim. Their work designation was the same.
It follows therefore
that seeing that the victim’s work status was not subordinate to
that of Booi, she could not have been reasonably
expected by law to
have made a sexual complaint to him. It was precisely for this very
same reason that she reported the sexual
incident to her superior. A
man in a position of authority and not to her peer. In my view,
nothing significant turns on the victim’s
alleged failure to report
to Booi. Booi himself testified that the victim
told
him about the incident. The victim never denied that she told Booi
she said she did not report to him. It appears therefor that
the
alleged contradiction was only a storm in a tea-cup.
[28] The magistrate
described the victim as an honest credible and reliable witness. I
can find nothing on the recorded evidence
to persuade me to differ.
I cannot find otherwise. Our courts do not, on appeal, lightly
interfere with such findings.
REX
v ABELS
1948 (1) SA 706
(OPD) and
S
v FRANCIS
1991 (1) SACR 198
AD at 204 c – e. The victim made a report to her
supervisor that the appellant had touched her breasts in a sexually
offensive
manner, as one would have expected a woman in similar
circumstances to have done. She did so at the first available
opportunity
which presented itself during the same night.
¡°
That
is a factor which supports the consistency of her evidence and
therefore supports her credibility.”
S
v HAMMOND
supra
,
at paragraph 25 on page 313 per Cloete JA.
[26] Again
the magistrate correctly remarked:
¡°
The
report itself is not corroboration for the complainant’s evidence,
but it is admissible evidence to show that ... (inaudible)
in making
a report as soon as possible is consistent with the conduct of a
female person who has been indecently assaulted.”
Nowhere in the judgment
did the magistrate treat the victim’s first complain to her
superior as a factor which created a probability
in favour of the
victim to the detriment of the appellant. In
S
v GENTLE
2005 (1) SACR 420
(SCA) on 431 paragraph 19 Cloete JA observed:
¡°
The
complaint cannot be used as creating a probability in favour of the
State case, ie it cannot be argued that because the complainant
complained shortly after the incident, it is probable that the
incident took place without her consent.”
[27] There
were three witnesses who testified for the state. However, neither
Meyers nor Vusi were amongst them. Since they were
not called to
testify on behalf of the victim counsel for the appellant submitted
that we draw an unfavourable inference from the
failure of the state
to call the two gentlemen.
[28] Mr. Steenkamp
heavily relied on the decision in
STATE
v TEIXEIRA
1980 (3) SA 755
(AD) at 764 A - B where Wessels JA said the
following:
¡°
In
my opinion, the failure by the State to call Tshabalala to testify as
a witness justifies the inference that in counsel's opinion
his
evidence might possibly give rise to contradictions which could
reflect adversely on Sarah's credibility and reliability as a
witness.”
[29] The victim was the
sole eye-witness in this case. There was no other known eye-witness.
Meyers arrived on the scene
post
facto.
He could not, therefore, corroborate the victim’s version as
regards the forward leg or the return leg of the incident. The point
is this: With or without Meyers testimony the victim’s status as a
single witness would have remained. In
STATE
v TEIXEIRA
supra
,
at 763 E Wessels JA said the following about a witness who was never
called by the state:
¡°
From
Sarah's evidence it appears that Tshabalala was clearly in a position
to corroborate her as to what occurred during the second
and third
incidents and also as to where he was during the fourth incident.”
[30] According to the
victim the appellant confessed to Meyers that he did touch her
breasts but averred that he did so in the course
of an innocent
teasing or play. The appellant admitted that Meyers did question him
about the victim’s accusation but he testified
that he denied the
accusation. In brief this is the significance of the evidence Meyers
would have given had he been called as a
witness. The magistrate
dealt with this point. He accepted as reasonable the victim’s
explanation that Meyers did not want to
be involved. I am of the
view that the prudent party involved in court proceedings, criminal
or civil cannot be expected to call
any witness who is hostile and
unwilling to testify in favour of the party calling him.
[31] In a civil case of
WEBRANCHEK
v L K JACOBS & CO LTD
1948 (4) SA 671
(AD) on 682 Van den Heever JA puts it as follows:
¡°
It
would have been natural for plaintiff to think that, somehow, Beretta
had conspired with Seef & Co. to intercept the major
portion of a
commission which should have accrued to him, the plaintiff. It would
in the circumstances not have been pure unreason
on the part of
plaintiff to fear that Beretta, if called, might not be unbiased.
Moreover a litigant who calls a witness vouches,
as it were, on pain
of being discredited himself, for his probity and truthfulness. The
potential witness may be untruthfully hostile,
he may have a bad
memory or an unfortunate presence. After all, plaintiff was entitled
to rest his case upon evidence which he considered
adequate to
discharge the onus which lay upon him. I am not persuaded therefore
that, in the circumstances of the present case, an
inference against
the plaintiff should be drawn from the fact that he did not call
Beretta as a witness;...”
It
seems to me the trial magistrate was correct in drawing no adverse
inference against the decision of the prosecutor on behalf
of the
state not to call Meyers.
[32] It is not quite
apparent to me what evidence Vusi would have given as regards the
incident of the 9
th
December 2004. He was not on duty in the Vodacom Building on the
night in question. Besides Vusi was employed by a different
employer,
Defensor (Pty) Ltd. There was apparently no statement
obtained from him. There is nothing to suggest that he was available
to testify
in a trial which started on the 20
th
September 2005, some eleven months after the first incident, which
happened on the 28
th
October 2004. But what is even more important is that it was never
suggested to the victim, during cross-examination, that her evidence
that she made the complaint to Vusi about the appellant’s sexual
misconduct was false. On this point alone it must be clear that
the
need to call Vusi therefore fell away after the cross-examination of
the victim. By and large the same applies to Malapo as
well. The
prosecutor is not obliged to call every Dick, Tom and Harry merely
because they witnessed an event.
S
v HILDEBRANDT
1922 (TPD) 99.
[33] Mr. Steenkamp also
contended that contrary to the magistrate’s finding, the victim was
an untruthful witness. He based his
submission on the information
contained in exhibit “a”. The document purports to be the
appellant’s payslip issued by her
employer Defensor Security (Pty)
Ltd. It appears
ex
facie
the exhibit that the appellant was not on duty on Thursday the 8
th
October 2004. It tends to discredit the victim’s version that the
appellant was on duty at Vodacom Building patrolling the premises.
[34] In
S
v GENTLE
2005 (1) SACR 420
(SCA) on 428 at paragraph 11 Cloete JA said:
¡°
The
form was handed in by the appellant's attorney with the consent of
the prosecutor. The medical practitioner was not called to
give
evidence. The only conclusion which can be drawn from the procedure
which was followed at the trial and the magistrate's reliance
on the
contents of the form is that in consenting that the form be handed
in, the prosecutor accepted the correctness of what was
stated in
it.”
[35] In
casu
the magistrate said the following:
“
... and must say that there is no
evidence here that complainant was telling lies.”
Again the magistrate
said:
¡°
...
that document that was handed in by the state is not a conclusive
prove that the accused was not on duty on the 28
th
of October.”
[36] Unlike in the case
of
S
v GENTLE
supra
in the instant case the document was not directly relevant to the
incident the court was grappling with, it was about a different
incident eleven days earlier. It was about the appellant’s
movement and not the victim’s appearance, it was handed in by the
prosecutor and not the defence attorney, but with the latter’s
consent. It was written by an anonymous author. It was handed
in
about six months after the victim testified. The author was not
called to give evidence.
[37] I fail to see the
significance of the document as far as the defence case is concerned.
The uncontested evidence of the victim
was that on Thursday the 28
th
October 2004 the appellant was on night duty at Vodacom Building. He
was patrolling the premises. She remembered the day well because
it
was her first day on duty as an employee of Securicor. On that same
day she met the appellant for the very first time. It was
never the
appellant’s defence that he was not on duty or that he was never on
the premises of Vodacom at any stage on the day in
question.
[38] On the facts it
cannot be deduced that by handing in the document the prosecutor
thereby accepted the correctness of what was
stated therein. The
contrary appears to have been the prosecutor’s aim. By handing the
document in as she did Ms Plaatjies wanted
to demonstrate the fallacy
of the appellant’s belated alibi. She had requested the defence
attorney, Mr. Theron, to provide her
with written proof in the form
of a duty register at Vodacom signed by the security guards on duty
or a leave of absence application
document signed by the appellant in
support of his belated alibi. Instead the appellant’s attorney
provided her with a copy of
the duty register in respect of a
different business enterprise called Fruits and Vegies. The best
document that she could get on
her own from the applicant’s
employer was this dubious payslip. It was absolutely unnecessary for
the prosecutor to hand such
a document. There was no alibi for the
state to rebut.
[39] There is no evidence
of who was the author of this document or who retrieved it from the
computer if it was retrieved from the
computer on the 29
th
March 2006. The user-id of the person who created the information on
computer is not reflected let alone the user-id of the person
who
retrieved such information. In my view, the appellant’s belated
alibi was nothing more than a fishing expedition. An alibi
was never
the appellant’s defence. The court cannot think out defences for
an accused. The magistrate clearly failed to appreciate
the point
which the prosecutor was trying to make, namely to expose the fallacy
of the alleged alibi.
[40] The record shows
that the defence attorney first intimated to the prosecutor on the
13
th
October 2005 that the appellant was not on duty on the 28
th
October 2004 – vide page 53: 1 - 5 and page 54: 12 – 14 of the
record. The appellant was arrested on the 20
th
January 2005. It seems that he never raised such an alibi with the
police. He pleaded on the 20
th
September 2005. Again he raised no defence of an alibi in court.
His attorney pertinently informed the court on that day that the
defence was not going to reveal the basis of the appellant’s plea
of not guilty. The victim testified on the same day, the 20
th
September 2005. The appellant’s alibi was never put to her during
cross-examination. The state case was closed on the 4
th
April 2006. The accused testified on the same day, the 4
th
April 2006. He never denied that he was at Vodacom on the 28
th
October 2004. Since there was virtually no evidence of an alibi the
document was not worth the paper it was written on. The unwarranted
exhibition of the document only created regrettable bungling which
let the appellant off the hook in respect of the first charge.
[41] In
THEBUS
AND ANOTHER v S
2003 (2) BCLR 1100
(CC) at paragraph 67 Moseneke J gave an exposition
of the alibi rule. The first aspect of the rule is that the late
disclosure of
an alibi is but one of the factors to be taken into
account in evaluating the evidence of the alleged alibi. The late
disclosure
standing alone does not conclusively justify the drawing
of an unfavourable inference of guilt. The second aspect of the rule
is
that the late disclosure of an alibi is a factor which is only
taken into account in the process of determining the weight to be
placed on the evidence of an alibi. At paragraph 68 Moseke DCJ, as
he now is, observed:
[68] The
failure to disclose an alibi timeously is therefore not a neutral
factor. It may have consequences and can legitimately
be taken into
account in evaluating the evidence as a whole. In deciding what, if
any, those consequences are, it is relevant to
have regard to the
evidence of the accused, taken together with any explanation offered
by her or him for failing to disclose the
alibi timeously within the
factual context of the evidence as a whole.”
[42] The appellant was
also implicated by a very credible witness, the victim’s father.
Mr. Steenkamp conceded that Mr. Mathafeni’s
testimony was the
appellant’s biggest obstacle. This credible witness corroborated
the victim’s version that he confronted the
appellant about his
daughter’s accusations. According to him the appellant confirmed
the victim’s accusative complaint as true,
begged for forgiveness
and pleaded that the victim should drop the case. According to the
victim the appellant also offered her
an amount of R500,00 in return
for the withdrawal of the case. These actions of the appellant
subsequent to the incident strengthen
the victim’s version. The
appellant’s denials were, in my view, correctly rejected as beyond
reasonable doubt false.
[43] I deem it
unnecessary to deal with all the appellant’s remaining critiques.
Suffice to say that the appellant’s claim that
the victim was
actuated by malice to make up false charges against him has no
substance. He and the victim were not employed by
the same company.
Whether or not he slept on duty would probably not have bothered the
victim. The fallacy of this alleged motive
is the fact that the
victim complained about the appellant’s actions on the very first
day of her employment. Indeed if the appellant
had the habit of
sleeping at work the victim would probably have reported it to the
appellant’s supervisor instead of taking the
matter to the police
for investigation. It would have ended there. It seems to me the
magistrate was correct to find that there
was no ulterior motive why
the victim implicated the appellant as she did. The queer manner in
which the appellant answered his
attorney shows just how poor and
unimpressive the appellant was as a witness. Asked whether he had
admitted to Mr. Mathateni that
he did touch the victim’s breasts he
answered:
”It was not
me who admitted that.”
Asked whether he had admitted touching the victim’s breasts to Mr.
Meyers he answered:
“Well,
that is not something that was done by me.”
This is a strange way of answering simple and direct questions.
[44] Having said all this
I have come to the conclusion that the magistrate’s finding that
the accused’s version was not reasonably
and possibly true was
correct. There is no doubt on my mind that the magistrate was also
correct in finding that the state had proved
its case against the
appellant beyond any reasonable doubt. On the merits I can find no
misdirection to warrant our interference.
Therefore I would confirm
the conviction.
[45] As regards sentence,
counsel for the state conceded that in the circumstances of this case
the sentence imposed was shockingly
severe and inappropriate. I
share the same view. The court
a
quo
exercised its sentencing discretion improperly. It erred in imposing
the said sentence on the appellant who was the first offender,
was
gainfully employed and was the sole breadwinner. In addition to all
this the manner in which the indecent assault was committed
does not
warrant such a severe sentence.
[46] Having considered
all the relevant factors, mitigating as well as aggravating, I am of
the view that a substantially shorter
and wholly suspended sentence
would have been a fitting and appropriate punishment for the
appellant. Such a sentence will probably
have the desired
rehabilitative effects on him.
In
view of the misdirection we are entitled to interfere. The sentence
has to be set aside.
[47] Accordingly I make
the following order:
47.1 The appeal as
regards conviction fails. The conviction is confirmed.
47.2 The
appeal against the sentence succeeds. The sentence of 2 (two) years
imprisonment of which 6 (six) months was conditionally
suspended is
set aside.
47.3 The
previous sentence is substituted with one of 12 (twelve) months
imprisonment which is entirely suspended for 3 (three) years
on
condition the appellant is not convicted of indecent assault
committed during the period of suspension.
______________
M.H. RAMPAI, J
I
concur.
_____________
C.
VAN ZYL, J
On behalf of the
Appellant: Adv. M. D. J. Steenkamp
Instructed
by:
Qwelane
Theron Van Niekerk
BLOEMFONTEIN
On
behalf of the Respondent: Adv. A. Ferreira
Instructed by:
Director: Public Prosecutions
BLOEMFONTEIN