South Africa: Eastern Cape High Court, Grahamstown

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CC 10/2015

In the matter between:

THE STATE

Vs

VUYISILE MAKHENDLANA.................................................................................................Accused

SENTENCE

MAKAULA J:

[1] The accused has been convicted of rape of a 57 year old woman.  The complainant was raped on 4 October 2014 in her home at about 8pm.  At the time she was seating in her lounge conversing with her sickly husband who was lying on a bed in their bedroom.  The accused who had been introduced to her by the complainant’s aunt as her relative on a previous occasion, entered and asked for water.  After the accused had been offered water, he pounced upon the complainant, pushed her to a fall and assaulted her with fists.  He thereafter raped her.  The accused testified that he also stabbed the complainant.  The medical report reveals 2x2cm lacerated wounds on the complainant’s hip.  In fact the medical report reveals the following injuries;

“She sustained severe bruising and swelling around both eyes, mouth is also swollen, severe tenderness on the left ribs.  She also sustained 2x2 cm lacerated wounds on the left hip, hip and perineum also bruised.”

[2] In addition to these injuries the complainant testified that she lost two teeth and those on the lower jaw are loose.  She testified that she has not yet fully recovered from the injuries to an extent that her face is somewhat deformed.  Her condition after the assault affected her husband to an extent that he told her that he would be better dead than to see her in that condition.

[3] The trauma the complainant went through and which she was still experiencing was glaring.  She broke down during her evidence on numerous occasions.  More especially when the version of the accused, which was a blatant lie, was put to her.  The false version put to her was that, she consented to having had sex with the accused.  She cried uncontrollably, repeating her answer saying ‘I never agreed to sleep with that child and God is my witness.’  She even testified that she was sexually inactive for some time as her husband was not well and therefore could not have ‘slept with that child’ referring to the accused.  It was apparent from the reaction of the complainant that the rape had devastating effects on her which were exacerbated by the false version put to her on behalf of the accused.  Rape on its own is humiliating and very serious.  Its dire consequences are as displayed by the complainant who intermittently cried during her testimony.  This rape has been made worse by the fact that it was perpetrated at the complainant’s house.  The plea by the complainant’s husband as to what was happening fell on deaf ears and did not deter the accused from continuing to assault and rape the complainant.

[4] The accused is 32 years, unmarried and does not have children.  He left school in Sub B.  He has an elderly mother who lives on old age pension.  The accused at the time of the incident was employed as a general worker who earned a sum of R250.00 per week which he used to assist his mother.

[5] The accused has a great number of previous convictions.  He has three (3) previous convictions of theft, one (1) of housebreaking, two (2) of assault and one (1) of rape.  At the time of the commission of the offence the accused was out on parole on the housebreaking convictions, so I was advised by the state.  On 20 April 2005 the accused was sentenced to undergo 6 months imprisonment for assault.  On the same day 20 April 2005 he was again sentenced to ten (10) years imprisonment for rape and due to be released on parole on 21 March 2011.  On the same latter date he was called upon to serve a remaining portion of 1359 days according to his SAP 69 for having violated his parole conditions. 

[6] As alluded to, even the current offence was committed whilst out on parole which was due to expire on 25 February 2015.  It is clear from the relevant previous convictions that the accused is undeterred and did not learn from the previous sentences.  Instead he is creating a criminal career path for himself which poses a danger to the members of our society.  The community needs to be protected from the accused.

[7] Mr Charles, for the accused, submitted that the fact that the accused changed his mind during cross-examination to admit that he committed these offences and the fact that he apologised proves that he is remorseful of what he has done.  With respect I do not agree with that submission.  It became clear from hence the accused was led in his evidence in chief, that he was not sure of his defence.  He was not convincing in his testimony.  It became worse under cross-examination because he began to confuse the sequence of events as per his version and was eventually caught up in his lies. 

[8] Mr Charles, apart from this aspect, could not come up with other substantial and compelling circumstances except to submit that the injuries were not severe and the complainant had somewhat recovered from them.  It is an undisputed fact that she has not fully recovered from the injuries on her face.

[9] The previous convictions (which are applicable to this matter) and the subsequent commission of this offence, prove that the accused has not learnt from his past experiences with the law as alluded to.  He has been imprisonment for many years only to come and commit a more serious rape.  He is not capable of rehabilitation and has proved as such.  I do not find any substantial and compelling circumstances.

Consequently, the accused is sentenced to life imprisonment.

_________________________

M MAKAULA

JUDGE OF THE HIGH COURT

Counsel for the State: Mrs Obemeyer

Counsel for the Accused: Mr Charles

Heard on: 20 & 21 April 2015

Delivered on: 22 April 2015