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IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN  CAPE HIGHT COURT KIMBERLEY)

Case number: CA& R 97 /15

Date   heard:26/06/2017

Date delivered:30/ 06 / 2017

In  the  matter of:

JAMES DAVID MATROOS                                                                               APPELLANT

and

THE STATE                                                                                                   RESPONDENT

 

Coram :  Williams J et Snyders AJ

JUDGMENT

SNYDERS, AJ

1. The appellant was convicted of rape and murder in the Regional Court, Richmond on 20 March 2013. He was sentenced to two terms of life imprisonment and now appeals against the convictions and sentences imposed.

2. The appellant was charged with raping and murdering the 16 year old deceased on 13 February 2010.

3. The appellant pleaded not guilty to both charges and provided a  detailed statement in terms  of s 115 of the Criminal Procedure Act 51  of 1977 ("the CPA"). The contents thereof will not be repeated  here, save to indicate the pertinent aspects on which his defence  rested:

3.1       The appellant and the deceased were in a relationship;

3.2       The appellant and the deceased had consensual intercourse on the day in question;

3.3       The deceased fell out of the mini bus taxi when the door slid  open whilst the appellant was executing a u- t urn.

4. The deceased's friend, Trishia Lottering, testified that the appellant and deceased were acquainted with one another. The deceased introduced the witness to the appellant and also sat next to him when they drove to buy a coldrink. After purchasing the coldrink, the deceased, her friends, the appellant and another gentleman drove to a different spot   to drink the coldrink. However, as soon as everyone alighted from the vehicle, the appellant drove away at high speed with the deceased still  in the vehicle. The witness did not know where the appellant and deceased were going.

5. The pathologist, Dr Walraven, testified to the deceased's injuries. Her testimony directly contradicted the basis of  the  appellant 's defence. The extensive bruising of the pelvic wall, the long tears in the vagina  and the 4cm tear on the viginal fornix were all indicative of a violent rape. The pathologist further testified that these injuries would have caused the deceased to be hysterical with pain. The pathologist's conclusion  of a violent  rape  was supported  by the  excessive  vaginal bleeding that was testified to  by  the  professional  nurse  and  the attending  doctor in De Aar .

6. The deceased suffered a brain injury. The pathologist testified that the injury was typical of a motor cycle accident. Alternatively, it could have been caused by blunt force trauma that was applied while the head  was supported. By explanation, if the deceased were kicked in the head while the head was in contact with the floor.

7. The deceased had some abrasions on her body. A fall from a  fast  moving vehicle would have  caused more abrasions  than those present  on the deceased. Conversely, a fall from  a slow  moving  vehicle  would not have caused the skull fracture. The pathologist thus ruled out consensual intercourse and falling from a motor vehicle, regardless of speed.

8. The appellant elected to remain silent. The Constitutional Court stated the following in S v Boesak: [1]

"The right to remain silent has application at different stages of a criminal prosecution. An arrested person is entitled to remain silent and may not be compelled   to   make any   confession or admission   that could   be  used in evidence against that person. It   arises again at   the  trial  stage  when  an l appellant has the right to be presumed  innocent,  to  remain silent, and not to testify during the proceedings. The fact that an appellant person is under no obligation to testify does not mean that there are no consequences  attaching  to a decision to  remain  silent during  the  trial. If  there is evidence calling  for an answer, and an appellant person chooses to  remain  silent  in  the  face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the appellant. Whether such a conclusion is justified will depend on the weight of  the evidence. "

9.  Thus, although the appellant  does not bear  the   onus,  there  are consequences attached in remaining silent. The Magistrate correctly evaluated the evidence before her in coming to a decision. The proper approach by for such evaluation was set out as follows in S v Chabala:[2] "The correct approach is to weigh up all the elements which point towards the guilt of the appellant against all those which are indicative of his innocence, taking  proper account  of inherent  strengths and weaknesses, probabilities

and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the appellant's guilt."

10. There are no grounds before me to set aside the conviction herein, as the Magistrate had correctly found the state to have proven its case beyond reasonable doubt.

11. In S v De Jager and Another[3], the Appeal Court postulated as follows regarding interferance with a sentence imposed by the trial court:

"It would not appear to be sufficiently recognised that a court of appeal does not have a general discretion to ameliorate the sentence of trial courts. The matter is governed by principle. It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion was not judicially exercised, that  is to say  unless  the  sentence  is  vitiated  by  irregularity or misdirection  or  is so severe that  no reasonable  court could have   imposed it. In  this latter regard an accepted test is whether the sentence  induces a   sense of shock, that is to say if there is a striking disparity between the sentences passed and that which the Court of Appeal would have imposed. It should therefore be recognised that appellate jurisdiction to interfere with  punishment is not discretionary but, on the contrary, is very  limited."

12. From the record, it is evident that the Magistrate had taken into  account and fairly balanced the appellant's personal circumstances, the prevalence and seriousness of the crimes and the interests of the community  in  determining  a suitable sentence.

13. The appellant raises the following factors, which Mr Van Tonder for the appellant argued would cumulatively constitute substantial and compelling circumstances:

13.1.            He was 26 years old when he commited the   offences;

13.2.            He was unmarried and had 3 minor  children;

13.3.            He completed grade  11  in  school  and  worked  as  a  taxi  driver for  R4 000. 00 per month;

13.4.            He was a first offender;

13.5.            The form of intention he was found guilty of was dolus eventualis;

13.6.            He spent approximately 3 years in custody awaiting finalisation of the trial.

14. In considering the appropriate sentence, the Magistrate took  into account  the  fact  that  the rape  consisted  of  penetration  with  a  penis, as well as an other  object.  The Magistrate erred  in  finding  this  to  be the only reasonable inference to be drawn based on the pathologist's testimony. However, the absence of penetration by an object does not detract from the brutality of the rape. The Magist1·ate also  erred  in  finding that the delay in finalising the matter  was  the  fault  of  the appellant and his first attorney. It is clear that a number  of  postponements  were at the instance of the state as    well.

15. That being said, cumulatively, the  circumstances  raised  by  the  appellant do  not  constitute  compelling  and  substantial  circumstances to justify a deviation from the prescribed sentence. As set out in S v Malgas [4]:

"The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy  of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure   from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.   All factors (other than  those set out in D above) traditionally  taken into account in sentencing   (whether or not they diminish moral guilt) thus continue to play a role;  none   is excluded at the outset from consideration  in the sentencing process.   The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such   as cumulatively justify a departure from the standardised response that the Legislature has ordained. "

16. Based on the above, I find that the Magistrate correctly convicted and sentenced the appellant.

Wherefore I make the following order:

1.     The  appeal on  both  the    convictions and sentences is dismissed.

 

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J. A. SNDYERS

ACTING JUDGE

I concur

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C.C WILLIAMS

JUDGE

On behalf of Appelant:       Mr A Van Tonder (Legal Aid)

On behalf of Respondent: Adv. K Ilanga (DPP)

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