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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

     CASE NO: CA&R99/2019

      Date Heard: 20 November 2019

      Date Delivered: 28 January 2020

In the matter between:

DONOVAN KAPP                                                                                        APPELLANT

and

THE STATE                                                                                                   RESPONDENT

APPEAL JUDGMENT

JAJI J:

[1]          The appellant was convicted of two counts of rape, two counts of kidnapping and theft by the Regional Court in Port Elizabeth. He was subsequently sentenced to a cumulative term of 27 years’ imprisonment. He was then granted leave to appeal on petition by the above Honourable Court and now appeals against sentence.

[2]       Appellant’s grounds for appeal are as follows:

(i)           The effective sentence of 27 years’ imprisonment is shockingly inappropriate and induces a sense of shock;

(ii)          The trial court erred after finding that the rape was not the most horrendous one to further find the following were not substantial and compelling circumstances justifying deviation from the minimum sentences:-

-          that the appellant was the first offender;

-          that the appellant spent two (2) years’ imprisonment awaiting trial;

-          that the appellant was a qualified Marine engineer;

-          that there existed a good relationship between him and the complainant and during the appellant’s incarceration the complainant continued visiting him in custody;

-          that the appellant had a minor child with the complainant.

[3]          It was submitted that the above cumulatively amounted to substantial and compelling circumstances and warranting deviation from the minimum sentences in respect of both rapes. The court was referred to the matter of S v Malgas 2001 (1) SACR 469 at para 476 – 477 the court’s approach in determining whether there were any substantial and compelling circumstances warranting deviation from the prescribed minimum sentence.

[4]          It is conceded that sentence is a matter for discretion of the court a quo. It is contended that the Court of Appeal may also interfere when there is a huge difference between the sentence imposed and the sentence that the Court of Appeal would have imposed. It was submitted that in this case the court over-emphasized the seriousness of the offence and the interest of society at the expense of the appellant’s personal circumstances. The court is asked to set aside sentences imposed by the trial court and substitute same with lesser sentences which will be effectively just and fair.

[5]          The state submitted that the trial court properly considered the personal circumstances of the appellant. The trial court’s findings that the rapes were not the horrendous ones was made with reference to life imprisonment. The trial court referred clearly to S v Mahomotsa 2002 (2) SACR 435 (SCA). The state submitted that the trial court was correct in finding that there were no substantial and compelling circumstances justifying deviation from the minimum sentence. The court did not over-emphasize the seriousness of the offences and the interests of society at the expense of the appellant’s personal circumstances.

[6]          The evidence herein is that the complainant was raped twice by the appellant using a weapon to threaten her. Violence was used and as a result she sustained bruises clearly depicted in the “J88”. She was traumatised as she was driven in a secluded area. She testified that she tried to avoid the humiliation and not to relieve the trauma by trying to let go of the case. The appellant had opportunity to reflect in the first rape but did not bother. He showed no remorse as he proceeded to rape her on the second occasion.

[7]          The rape of complainant involved contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007. The minimum sentence prescribed was applicable. The court a quo found no substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum.

[8]          It must always be borne in mind that a court of appeal has no general power to interfere with the trial court’s sentence. The court may interfere if the court a quo’s discretion has not been exercised judiciously. The discretion is indeed circumscribed but not taken by legislation.   (See S v Vilakazi 2009 (1) SACR 552 (SCA)).

[9]          The factors stressed by Ms Mazibukwana were all considered by the court a quo. The court a quo evaluated appellant’s personal circumstances in relation to the aggravating circumstances having regard to the crime and interests of society. The submissions by Ms Mazibukwana that the appellant was known to the complainant as a result of a past relationship, the fact that they had a child together is not a favourable factor to the appellant. Contrary it is aggravating as he owed her a duty of care as a mother of his child. Ms Mazibukwana’s suggestion that it should be taken cumulatively with other facts as substantial and compelling is beyond me. A rapist is a rapist whether he is known, unknown, neighbour, father, brother, partner, co-worker or a pastor in the church. A rapist has no certain traits that he can be identified with. The submission that the appellant was a former partner of the complainant somehow renders the rape less serious, bothers on gender stereotyping.

[10]       I am of the view that given the gravity of the offence by a former partner to the complainant, any lesser sentence than the one imposed would render the rape less serious, would be inadequate and indeed disproportionate. The sentence imposed by the court a quo is not inappropriate and in the circumstances would never induce a sense of shock.

[11]       Accordingly, the appeal against sentence (cumulatively 27 years’ imprisonment) is dismissed.

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N P JAJI

JUDGE OF THE HIGH COURT

Potgieter AJ,

I agree

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D POTGIETER

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the appellant                  :       Ms Mazibukwana

Instructed by                         :       Legal Aid, Grahamstown

For the respondent              :         Adv Zantsi

Instructed by                         :        DPP, Grahamstown

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