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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)      REPORTABLE: (NO)

(2)       OF INTEREST TO OTHER JUDGES: (NO)

 

Case no.:    A327/19

 

In the matter between:

 

JOHANNES ELIAS CHANGWAZA                                                                      APPELLANT

                     

And

 

THE    STATE                                                                                                           RESPONDENT

 

JUDGMENT

BOKAKO AJ

 

INTRODUCTION

1.    The Appellant is appealing against the conviction and sentence. He was convicted in the North Gauteng Regional Court, held at Pretoria-North as follows: Count 1: Contravention of Section 3 of the Sexual Offences Act, Act 32 of 2007; Count 2 Assault with the intent to cause grievous bodily harm. Count 3: Contravention of Section 3 of the Sexual Offences Act, Act 32 of 2007. And Count 4 Contravention of Section 3 of the Sexual Offences Act, Act 32 of 2007. The Appellant was subsequently sentenced on 26^th July 2016 to Life imprisonment.

2.    The Respondent opposed this application arguing that the court a quo had not misdirected itself. It contended that the court a quo court took all relevant factors into consideration when convicting and sentencing the appellant and that the sentence imposed is fair and appropriate in the circumstances.

 

THE APPELLANT`S GROUNDS OF APPEAL

 

3.    The Appellant contends that the State did not prove its case beyond a reasonable doubt; That it failed to apply cautionary rules that are applicable to single witnesses, neither did it attach enough weight to the contradictions and improbabilities in the State’s case, particularly the Complainant’s evidence. Further, that the sentence imposed is shocking and disproportionate to the facts of the case; the learned Magistrate also over-emphasised the seriousness of the offence and the interests of society by failing to take into account the prospects of rehabilitation and by finding that the minimum sentence of life imprisonment is applicable to each of counts 1, 3 and 4 whereupon it imposed three terms of life imprisonment.

 

PRELIMINARY ISSUES

4.    The Appellant raised a point in limine, in that the record of proceedings was incomplete. Appellant's contention is that the available transcript does not include a full transcript of the cross examination of one Elias Chingwanza. This matter was set down for an appeal hearing on the 6^th of August 2020 before Justice De Vos and Justice Sardiwalla. The court having considered the papers and preliminary issues raised by the Appellant. The court ordered that the record of appeal is incomplete and referred back to the trial court for a proper reconstruction to be done. The trial court`s attention was specifically drawn to the following: (a) A full transcript of the evidence tendered by the defence, (b) A full transcript of the evidence of Mr. Elias Johannes Chingwanza and (c) The applicable case-law set out in the court order. Subsequently, the appeal was postponed sine die. Consequent to the postponement of the Appeal; the court record was returned to the clerk of the court with a request that reconstruction be done.

5.    On the 16^th of July 2021 the trial court Magistrate wrote confirming that he was the presiding officer in this matter and further indicating that the only part of the proceedings not recorded was the cross examination of the accused. After numerous attempts were made, such could not be transcribed.

6.    A reconstruction hearing was conducted with all parties involved. During reconstruction, the prosecutor in the matter could not give any input with regard to the missing portion due to a fact that her notes were filed in the case docket after finalisation of the matter and such docket cannot be traced. That was confirmed as per the affidavit of Warrant Officer Wilken dated the 24^th June 2019.The defence attorney did give his input on the matter as it obtains in his court file. The Magistrate stated further that the reconstruction does not cover each and every verbatim question but it is a summary of important parts of the Appellant`s version during cross examination.  Reconstruction of cross examination was as follows: The accused, (Appellant), was questioned extensively on the period regarding his relationship with the complainant. The questions posed revealed that according to the accused version, he was in a relationship with the complainant dating back to 2013. However, during evidence in chief the accused referred to a meeting with the complainant at the station in 2014. The dates and years 2013 in relation to the 2014 arrangements were canvassed extensively and the accused experienced great difficulty in answering the questions posed in this regard. Mainly during cross examination, he refuted the complainant`s version regarding the injuries she sustained at the time and the rape alleged. He further told court that it was only on the 6^th of July when he realised that the complainant was his family member. The accused could not give any plausible answer to any questions posed by the court on how the complainant got injured.

7.    The above reconstruction was confirmed by the prosecutor Mrs. Du Preez of behalf of the state, it was also confirmed by the defence attorney Mr. Shandu on behalf of the accused. The appellant Mr. Chigwaza was requisitioned and he appeared in court. The reconstruction version was read into the record, where the Appellant confirmed that he was completely satisfied with the reconstruction. He also appended his signature confirming the reconstruction process and the contents thereof.

 

8.    It is trite that before the appeal can be entertained, a proper reconstruction of the record should be done, and the procedure to be followed is significant. This court is satisfied that the magistrate has placed it on record that the parties have reassembled for the purpose of the proposed reconstruction and that the parties did express their views except for the prosecutor who could not do so since the docket has gone missing.  Also, each aspect of reconstruction accords with their recollection of the evidence tendered during trial. This court is satisfied that the cross examination of the Appellant is precise, given the circumstances as indicated by all parties involved that these only contain a brief summary of the important parts of the cross examination. The administrative procedure of reconstructing the record was correctly followed. Therefore, this court places reliance on the reconstructed record.

RELEVANT BACKGROUND FACTS AND EVIDENCE LEADING TO THE CONVICTION AND SENTENCE 

 

9.    The full background facts were comprehensively set out by the court a quo, which I adopt and briefly repeat hereinafter. The Complainant K[....] M[....] M[....] testified in all the counts that the appellant in this case is her cousin. She met him on 5 July 2014. They really got to know each other at a family function earlier on the day in question. Prior to that day, she had only seen the appellant many years ago when she was still very young. The appellant was introduced to her at the function and then they sat together enjoying the occasion.

10. The appellant then suggested to the complainant that they should go to another party later in Hammanskraal. The two left with an understanding that she will be brought back home, by the Appellant. The complainant informed her sister and they left using a taxi.  On their way, the appellant gave the complainant R500. They alighted from the taxi, they went to the first tavern and then proceeded to another tavern namely Sam’s Tavern. That is where the Appellant bought her some fish and chips. Whilst there, some people came and made a remark that they had never seen the appellant with such a beautiful lady.  At about 20h00, they went to the appellant’s house to collect a jersey, as the complainant was feeling cold. She was still eating chips when the appellant approached her and sat next to her. He then demanded to kiss her, the complainant refused and she asked him if their agreement had changed. The appellant responded about how his friends complimented her and the appellant and said she charmed him. He tried to kiss her. At that time, she tried to get out of the house but the appellant blocked the door and took her mobile phone. She then asked him if he wanted to rape her. His response was that: “he could take it whatever the way he wanted it”. He further said he is just doing his job. He then pushed her onto the bed. She resisted but the appellant went to the fridge to fetch a lunchbox full of knives and screwdrivers. He asked her to choose the weapon that he must use to hurt her. He then pulled off her boots, pants and underwear. He took off his clothes, and came on top of her. She asked him if he could at least use a condom but he refused. He then raped her and it was a painful experience to her. After raping her, they dressed up and he gave her his t-shirt to wear and her cell phone back.

11. He took back the R500 that he had given to her earlier and proceeded to Sam’s Tavern. The friends came to make similar remarks as earlier and the appellant said the complainant was his woman. She went to the toilet and spoke to certain girls but the appellant came and slapped her, and accused her of being a prostitute. She took off his t-shirt and gave it back to him, and said she wanted to go home.  Whilst at the gate, the appellant assaulted her, by hitting her with fists on the back of her head, more or less 5 times and he strangled her. The security pushed both of them outside. The appellant kicked her with booted feet on the right side of her head. She was bleeding from the nose and people tried to assist her. One of his friends went to the security guard to fetch the phone. The appellant poured a beer on her.

12. On their way back to Appellant`s place, the appellant opened her phone, and took out the SIM cards and destroyed them by chewing them. The Appellant was boasting, saying that: “He is the king of Kekana Area”. They arrived back at the appellant’s house at about 23h00. He then ordered her to take off her clothes because they were wet but she refused. He asked her if she wanted the fight to start again and then she proceeded to take off her clothes. He also undressed and told her to lie on the bed whereupon he raped her again without a condom. He then ordered her to get into the blankets afterwards and told her that he is an old Tsotsi. He threated to kill her if she laid a charge with the police.

13. He further said that he could bribe the police if he liked. She thought of running away when the appellant went to sleep but she was sore, scared and later fell asleep. At about 5:00 in the morning the appellant raped her again without a condom, when done the appellant prepared warm water and ordered the complainant to bath from waist downwards, which she proceeded to do even though she did not want to bath. He told her to leave her clothes there but the complainant refused. He gave her R120,00. She then took a taxi to the police station where she immediately opened a case against the appellant at Hammanskraal Police Station. She testified that she had injuries, scratches on the neck, a cut in between her fingers, face and her nose and inside her mouth she was injured, as well as behind the ear and inside the ear. She also suffered injuries in her vagina. The police took her to Jubilee Hospital for medical examination. A Medical Report was handed in, as an exhibit in court, which also corroborated the testimony of the complainant regarding the injuries she sustained.

 

APPELLANT`S SUBMISSIONS

 

14. It is the Appellant’s submission that the learned Magistrate misdirected herself in finding that the evidence presented could be relied upon to convict him on the count brought against him. He points out that the state carries the onus to prove his guilt beyond a reasonable doubt and that it is not the other way round.

15. It was submitted that the State is required to exclude all reasonable possibilities other than the one consistent with the guilt of the accused.  Rereference was made to the case of S v Shackell 2001 (2) SACR 185 SCA where the court stated as follows: “It is a trite principle that in criminal proceedings, the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused's version it true. If the accused's version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused's version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”

 

16. It was further submitted that even though she referred to cautionary rules, and certain safeguards that she found; the Regional Magistrate never properly applied the relevant cautionary rules applicable, to wit the cautionary rule pertaining to single witnesses. That Cautionary rules are rules of practice and must be followed whenever evidence of certain witnesses gets evaluated. It serves as a constant reminder to courts that the facile acceptance of the credibility of certain witnesses may prove dangerous. The Cautionary rule requires, first, that the court should consciously remind itself to be careful in considering the evidence which practice has taught should be viewed with suspicion and, secondly, that the court should seek some or other safeguard reducing the risk of a wrong finding based on the suspect evidence. It is common cause that the Complainant K[....] M[....] was a single witness regarding the circumstances of the sexual assault on the Complainant in the early hours of the morning. It was submitted that the testimony of the Complainant K[....] M[....] was not clear and satisfactory in every material respect, and that the court could not have relied on her evidence that the Appellant she had visited attacked her in the morning. It is not unreasonable to conclude that the statement of the Appellant, to the effect that K[....] M[....] had ulterior motives to implicate him falsely and that could serve as a motive to falsely implicate him.  

17. It was also submitted on behalf of the Appellant that the medical evidence does not serve to corroborate the version of the Complainant. It only serves to corroborate that recent penetration had taken place, a fact that the Appellant in any case admitted.

18. The point was further raised that the security guard and two ladies were not called by the State Prosecutor to corroborate the version of the complainant regarding the incident in the restroom of the shebeen and the fight with a security guard which happened thereafter. It was submitted therefore that, the absence of evidence by these witnesses serves to give credence to the version of the Appellants to the effect that the incident did not unfold in the manner the Complainant testified. Besides, there is no explanation by the State regarding why these witnesses were not called to testify. It is trite that the onus is on the state to prove the case against the accused beyond reasonable doubt. It was submitted on behalf of the appellant that failure to call relevant witnesses should lead to a negative inference against the state. It was also submitted that the State did not place reliable evidence before court to prove the quilt of the Appellant beyond reasonable doubt.

19. Although it was conceded through the Appellant`s submissions that his evidence is not beyond criticism, it is submitted that not all untruthful statements are indicative of guilt. The criticism raised should be considered against a number of factors including the level of development of the Appellant. The question should be asked how material the criticism is. It will not be correct to draw the worst possible inference against the appellant in order to punish him for a criticism.

20. Regarding sentencing, it was submitted that Magistrates courts; including Regional Courts, are creatures of statute and can only act within the ambit of legislation regulating and authorizing their actions. The Criminal Law Amendment Act: 1997 – (Act No 105 of 1997) - CLAA, also referred to as the Minimum Sentences Act), increased the sentencing jurisdiction of Regional Courts for offences listed in Schedule 2 in terms of section 51(2) of the Minimum Sentences Act. Regional Courts derive their increased sentencing jurisdiction solely by virtue of these provisions and in all other cases, the jurisdiction remains 15 years in terms of section 92(1)(a) of the Magistrates Court Act, Act 32 of 1944. It was submitted on behalf of the Appellant that to trigger this increased sentencing jurisdiction, the State has to prove that offenses were committed which stand listed under Schedule 1 and 2 in terms of section 51 of the Minimum Sentences Act. See: S v Mokela 2012 (1) SACR 431 (SCA).

21. It  was further submitted that in respect to Count 1, 3 and 4 separately that multiple rapes were not proven through the evidence adduced before court and that the only crime which could be proven was a single incident of sexual intercourse in instances concerning Counts 1, 3 and 4. It was argued that offenses in these counts took place separately and as such multiple acts of sexual intercourse were not proven in respect to each count as was the requirement in terms of the Minimum Sentences Act. It is contended that if the court on appeal is of the view that life imprisonment is not an appropriate sentence, then the cumulative effect of all the separate sentences should be considered to reach an appropriate sentence and the concurrent serving of the different sentences in total or in part is to be considered. Offences that were committed in circumstances where the one offence followed closely on the other and to a certain extent were committed with one aim, justify close scrutiny of the effect of the combination of the sentences.

22. It was submitted that the cumulative effect of the sentences ought not to be so excessive that it could be deemed to be disturbingly inappropriate as offences flowing from one incident should be taken as one, for purposes of sentencing. Where there is a close link between offences in that elements of one offence are closely bound up with elements of another, the concurrent running of sentences has to be considered as being appropriate.

23. It is conceded that the absence of injuries in itself, as set out in Section 51(3)(a)(A)(ii) of the minimum Sentence Act, Act 105 of 1997, does not necessarily mean that substantial and compelling circumstances are attendant to the person/s of the accused but it is still a factor to take into account when determining an appropriate sentence.

24. It is the Appellant’s submission that there is a number of factors, read with the personal circumstances of the Appellants, which ought to cumulatively establish substantial and compelling circumstances, namely:

 24.1. The period spanning over 22 months where the Appellant was incarcerated pending the finalizing of the trial;

24.2. The Appellant had consumed and was under the influence of alcohol on the day of and during at least the second and third incident;

                24.3. He was 32 years of age at the time of sentence;

               24.4. He was not married, and he had 2 minor children and

                24.5. He was not a first offender;

               24.6. The Appellant fell from grace within his community and his family;

                  24.7. He only completed grade 11 at school;

                  24.8. He was employed.

25. It was further submitted on behalf of the Appellant that the learned magistrate erred in finding that there were no substantial and compelling factors present in this case on the basis of which to deviate from imposition of the minimum sentence.

26. It was further submitted that the magistrate erred in not properly applying his mind to inquiring into the proportionality between the offence and the period of imprisonment.

RESPONDENT`S SUBMISSIONS

27. The appellant testified that he had a romantic relationship with the complainant and was not aware that they were cousins. He further denied that he had any sexual intercourse on the 5, 6 or 7 July 2014 as per the charge sheet. However, he testified that he had consensual intercourse with the complainant on 4 July 2014. It was submitted that the court a quo correctly rejected the testimony of the appellant, as it was fraught with improbabilities and inconsistencies. The appellant claims that he had a consensual sexual intercourse with the complainant on 4 July 2014, the date on which according to the complainant, she had not yet come to know the appellant. The complainant had only met the appellant many years ago when she was still very young. She even had to be introduced to the appellant on the 5^th of July 2014. He couldn’t recognise her any more as he had last seen her when she was still much younger. He could not recognise her at the family function before she was introduced to him together with her other sister. There was medical evidence, which indicated that the complainant sustained an assortment of injuries on her body, which was consistent with assault as per her testimony. this could not have been consistent with consensual sex. She also sustained vaginal injuries, which were consistent with her version. The complainant was able to relate in clear terms how the events unfolded in their sequence when she sustained the injuries and when she was raped. The witness was truthful and never minced her words. She stood firm during cross-examination and was never shaken.

28. The complainant was a single witness. According to the provisions of Section 208 of the Criminal Procedure Act 51 of 1977, such evidence can be accepted by the court, if it fulfils applicable requirements. The complainant was found to be a competent and credible witness. The court accepted her testimony as it was satisfactory in all material respects. The appellant could not be described as a credible witness. The court found him to be poor and evasive. He did not impress the court at all. He claimed that he was framed by the complainant, but could not come up with reasons why that could be so, except to say maybe she found her boyfriend when she returned home. He further changed and said maybe it’s because she is pregnant as he heard that she was pregnant. The appellant’s version was riddled with discrepancies, inconsistencies and improbabilities. Having regard to the totality of evidence tendered, it was submitted that there was no misdirection, which justifies appellate interference in respect of the conviction of the appellant. The court a quo considered the appellant’s personal circumstances, which were placed on record of the judgement.

29. After considering all the mitigating factors and personal circumstances of the appellants, the court a quo made a finding to the effect that such factors do not justify the imposition of a lesser sentence.

30. It was further submitted that the sentence which was imposed is not shockingly inappropriate and is not disproportionate with the offence committed by the appellant in the light of the following aggravating factors:

30.1.     The offence is violent in nature and very prevalent in the Republic,

30.2 He assaulted a defenceless woman, and the offence constitutes a gender based violence case,

30.3. The appellant abused his position of trust as the cousin of the victim     and knew the victim was vulnerable in that she was not familiar with the area where the appellant lives; therefore, she had nowhere to run to for help and the appellant did not show any remorse.

30.4.     The complainant was raped more than once, submitting that, having considered all the factors, the sentence imposed by the court a quo, is manifestly fair and just consequently, the appeal against sentence ought to be dismissed.

 ANALYSIS AND APPLICATION OF THE LAW

31.     As stated above, this is an appeal against conviction and sentence on the basis that the trial court erred in finding the Appellant guilty and sentencing him to life imprisonment. It was further submitted on behalf of the Appellant that the sentence imposed upon him is shockingly inappropriate and harsh, given the following brief narrative regarding how the incident took place:

31.1.     The complainant and the Appellant were distant relatives. They had not seen one another over a very long time.

31.2.     On the day in question, he forcefully lured her along and the complainant trusting that he is her family relative; drew comfort from that, bearing in mind that on the day in question some of the family members present knew and witnessed when the complainant departed with the Appellant and none of them raised eyebrows given their family relations. 

31.3.     The appellant told the court that he had a consensual sexual intercourse with the complainant on the 4^th of July 2014, which was vehemently denied by the complainant, who had only met the appellant many years ago when she was still very young.

31.4.     The complainant even had to be introduced to the appellant on the 5^th of July 2014. She couldn’t recognise him any longer as she had seen him when she was still young.

31.5.     There was medical evidence, which indicated that the complainant sustained a variety of injuries on her body, which was consistent with assault as per her testimony. She also sustained vaginal injuries, which were consistent with her version.

31.6.     It is clear on record that the complainant was able to clearly narrate the incident in sequence regarding how she sustained the injuries and how she was raped.

32.     Concerning whether there has been any splitting of charges; whether the state also proved the guilt of the Appellant beyond a reasonable doubt on the other charges, the defence argued that the complainant’s evidence must be rejected in its entirety. The complainant was confronted with the difference in her statement and all her evidence. The purpose of the statement has been established over a number of years in a number of cases that it is just for a prosecutor to decide whether to institute prosecution or not and the statement is never seen as a pre-curser to the witness court`s testimony.

33.     In the case of S V Govender and Others 2006 (1) SACR 322 (EC[1]), the statements were written in English which is not a first language of either the police who took the statement as well as the Complainant.

34.      Section 1 (2) of the Sexual Offences Act[2] defines consent as a voluntary agreement which was not preceded by coercion. The Oxford dictionary describes it as permission for something to happen, or agreement to do something. Consent, as it is well-known can be given in many forms.  There is a difference between mere submission and real consent. When someone agrees to do something or allows someone to do something or allows someone to do something to him or her because of threats or coercion, that cannot be regarded as consent; the reason being that it is not based on free will but was induced by fear or threat and the person just gave in or gave up. This is exactly what happened to the complainant. She neither agreed nor consented in having sex with the Appellant. The complainant`s behaviour of not resisting the Appellant cannot be considered to be consent to having sex with the appellant.

35.     It is not in dispute that the Complainant went out with the Appellant voluntarily from their family gathering as the Appellant was introduced to her as a cousin. From her evidence, it is clear that she was comfortable and relaxed with the Appellant. At the time, she innocently believed that she was safe with him. She never doubted him, hence she voluntarily went along in his company.

36.     The complainant was a single witness where it regards material elements of the offence. It was just the two of them when these three incidents of rape took place. Incidences of Rape are generally intimate in nature and it makes sense why generally there will be no witnesses around at the time when the event takes place. Section 208 of the Act states that an accused person may be convicted on the evidence of a single, competent witness.

37.     It is further an established principle that the evidence of a single witness should be approached with caution and that it ought to be satisfactory in all material respects or that it be corroborated. See among others: S v Miguel 2007 (1) SACR 675 and 678 (C) and S v Sauls 1981 (3) SA 172 (AD).

38.      Case laws further indicates that the lapse of time between the separate acts of penetration would also determine if there are repeated acts of rape or not. See S v Blauw 1999 (2) SACR 295 (WC) and S v Mavundla 2012 (1) SACR 548.

39.     Regarding the issue of the splitting of charges, the defence submitted that the state should have charged the Appellant with all these charges at once. It contends that the manner in which the Appellant was charged in this case constitutes a splitting of charges which will result in undue multiple convictions.  The state correctly submitted that the Criminal Procedure Act provides for the state to put as many charges as they can, if unsure of which charge the evidence will prove.  Therefore, in casu with regard to the counts against the Appellant, such do not amount to splitting of offences.  

 

40.     One will have to look at the process and how the Appellant took advantage of the complainant in executing his intentions.  It is clear that when the appellant took the complainant to his place of residence, he knew that he would take advantage and force himself onto the complainant since there would be no one around to rescue her and that she is not familiar with the area. It is important to note that “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.  The rights to dignity, to privacy, and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation.  Women in this country are entitled to the protection of these rights.  They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.”^[3]

 

41.     The facts of this case demonstrate that the Appellant wrongly had a sense of entitlement. He felt that he owns and possesses the complainant even though both parties don’t dispute the fact that the complainant was not forced to accompany the Appellant. The appellant gave the complainant R500 which he took back when he sensed that the complainant does not trust him. That on its own demonstrates a deliberate manipulation of a young woman. He later bought fish and chips and complemented the complainant recounting how his friends complimented her. The level of fear to which the complainant was subjected was extreme. The appellant fetched a lunchbox full of knives and screwdrivers, asking her to choose the weapon that he must use in order to hurt her. That was fear inspiring. The complainant told the court that it was at that time when he raped her for the first time on the day in question without using a condom. He later took her to a tavern, accusing her of being a prostitute. He assaulted her by hitting her with fists more or less five times on the back of her head and strangled her.  After the two of them were kicked out of the tavern, the appellant kicked her with booted feet on the right side of her head. She was bleeding from the nose and people tried to assist her. At this stage it was clear that the complainant was helpless. She tried reporting this incident and seeking help but nobody came to her rescue. The Appellant took her with around 23h00 back to his house, where he continued to rape her.

 

42.     The high incidence of sexual violence suggests that male control over women and notions of sexual entitlement feature strongly in the construction of masculinity in South Africa.  Some men view sexual violence as a method of reasserting masculinity and controlling women.

 

43.     The complainant was not only kicked and punched, but she was also strangled. She was bleeding. She was subjected to this torture over a prolonged period of time. She was only released on the following morning. This court has no doubt that the complainant suffered grievous bodily harm. She was extremely fortunate to have survived this ordeal.

44.     In considering whether the sentences imposed upon the appellant are inappropriate, one must of course bear the personal circumstances of

 the Appellant in mind.   The Appellant was incarcerated for 22 months pending the finalization of the trial. He had consumed and was under the influence of alcohol on the day of the offences and he was 32 years of age at the time he was sentenced. He was not married. He had 2 minor children. He was not a first offender. Consequent to getting arrested, the Appellant fell from grace within his community and his family. He only completed grade 11 at school and he was employed.

 

45.     The offences of which the appellant stands convicted are extremely severe. His interest in the complainant does not justify his actions.

 

 

CONCLUSION

 

46.     It is evident that the risk of harm to the complainant was eminently foreseeable when the appellant kicked her with booted feet. She would have been seriously injured if she did not succumb to the Appellants threats and assault.  It is trite that Section 51 has limited but not eliminated the court’s discretion in imposing the sentence in respect of the offences referred to in Part 1 of Schedule 2 of the CLAA. Drawing upon our common law jurisdiction, the following general principles have application and were restated in S v SMM,  2013 (2) SACR 292 (SCA) at para [13] in the following terms:

 

“It is equally important to remind ourselves that sentencing should always be considered and passed dispassionately, objectively and upon a careful consideration of all relevant factors. Public sentiment cannot be ignored, but it can never be permitted to displace the careful judgment and fine balancing that are involved in arriving at an appropriate sentence. Courts must therefore always strive to arrive at a sentence which is just and fair to both the victim and the perpetrator, has regard to the nature of the crime and takes account of the interests of society. Sentencing involves a very high degree of responsibility which should be carried out with equanimity. As Corbett JA put it in S v Rabie:

'A judicial officer should not approach punishment in a spirit of anger because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interests of society which his task and the objects of punishment demand of him. Nor should he strive after severity; nor, on the other hand, surrender to misplaced pity. While not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.'

 

47.     In casu, it is clear that there were aggravating factors accompanying the Appellant`s actions during the commission of the crimes, so much so that he does not deserve mercy.  The aggravated circumstances of the offences far out-weigh the mitigating circumstances of the Appellant.  One shudders to think what might have happened had the complainant not succumbed to his threats and assault. She would have been killed. The behaviour of the Appellant shows lack of respect for the complainants’ physical integrity, freedom of movement and human dignity. He has offered no explanation for this barbaric behaviour.

 

48.     It is trite that a court of appeal will only interfere with the sentence imposed by the trial court where the sentence imposed is disturbingly inappropriate or out of proportion to the magnitude of the offence or where it is sufficiently disparate or is vitiated by misdirection illustrating that the trial court exercised its discretion unreasonably or is otherwise such that no reasonable court would have imposed it. The court finds that in this case, the trial court did not misdirect itself in failing to take any of the relevant factors into account.

 

49.     This court is not persuaded that there are indeed substantial and compelling reasons on the basis of which to deviate from the imposition of the prescribed minimum sentence. Therefore, it is concluded that the trial court was correct in imposing the maximum sentence.

 

50.     Considering all the facts and circumstances, there is no basis upon which to interfere with the sentence imposed by the trial court on the appellant.  It follows that his appeal must fail.

 

51.     In the result, the appeal against conviction and sentence is dismissed.

 

                                                                                           T.P. BOKAKO

Acting Judge of the High Court,

Gauteng Local Division, Pretoria

 

I agree, and it is so ordered.

                                                                                                        T.A. MAUMELA

Judge of the High Court,

Gauteng Local Division, Pretoria

REFERENCES:

 

 

On behalf of the Appellant         :         Mr M G Botha

Instructed by                                :        Legal Aid                                                                             

On behalf of the State                :          Mr WKK MPHAHLELE

Instructed by                                :        DPP

 

Date of Hearing                           :         02 FEBRUARY 2022

Date of Judgment                        :         25 MARCH 2022

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