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.
  
_________________
J. A. SNDYERS
ACTING JUDGE

I concur

_________________
C.C WILLIAMS
JUDGE

On behalf of Appelant:             Mr A Van Tonder (Legal Aid)
On behalf of Respondent: Adv. K Ilanga (DPP)

[1] 2001 (1) SARC 1 CC at para 24

[2] 2003 (1) SACR   134 SCA at para   15

[3] 1965 (2) SA 616   (AD) at 628 H-629 (A)

[4] 2001( 1) SACR 469 (SCA ) at 470 D -   471 G