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Reportable:                                          Yes/No

Circulate to Judges:                              Yes/No

Circulate to Magistrates:                       Yes/No

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE HIGH COURT, KIMBERLEY)

CASE NO.: CA&R 62/2019

Date heard:  24-02-2020

Date delivered: 30-10-2020

In the matter between:

         

Gerhardus Jacobs                                                                                                             Appellant

 

And

The State                                                                                                                           Respondent

 

CORAM:  WILLIAMS J et CHWARO AJ:

JUDGMENT

WILLIAMS J:

 

1.           The appellant Mr Gerhardus Jacobs, was convicted in the Regional Court, Upington, on two counts of rape in contravention of section 3 of Act 32 of 2007.  Having found no compelling and substantial circumstances which would justify the imposition of a lighter sentence, the Regional Magistrate sentenced the appellant to life imprisonment in terms of section 51(1) of Act 105 of 1997 (the Act).  He now appeals against the sentence imposed.

Background

 

2.           On the morning of 10 December 2016, while the 24 year old complainant was in her home washing herself, the appellant who is her cousin, entered her room, grabbed the complainant by the neck, took off her bra and tied her hands with it.  When she tried to fight him off, he stabbed her with a knife on her hand.  He then tied her hands with an electric cord as well.  She managed to run out of the house but the appellant soon caught up with her and with brazen disregard of the complainant’s grandmother who was sitting under a tree next to the house, and with his arm around her neck, he dragged her through the veld, over a fence and into a vineyard.  There the appellant tied the electric cord around the complainants neck and attached it to a tree.  Tethered as she then was, he first raped her anally whereafter he untied the electric cord from the tree and then proceeded to rape her vaginally.  When he was done, the appellant calmly walked the complainant halfway to her home, eating grapes along the way.  He then warned her that he would kill her if she told anyone about the incident and then ran off. 

 

3.           Throughout this ordeal, the complainant was naked from the waist up.  Great must have been the shock of the complainant’s father, who had arrived home in the meantime, to find his daughter returning home in that state.

 

4.           The grounds of appeal are as follows: (a) the sentence of life imprisonment is disproportionate in relation to the nature of the offence and the interest of society; and (b) the trial court erred in not finding that imprisonment for life should be reserved for instances where the evidence justifies the removal of the offender from society for the remainder of his life.

 

The approach on appeal

 

5.           In S v PB 2013 (2) SACR 533 (SCA) at 539 f-g, Bosielo JA set out the approach to an appeal on sentence imposed in terms of the Act as follows:

“The approach  . . . should, in my view, be different to an approach to other sentences imposed under the ordinary sentencing regime.  This in my view, is so because the minimum sentences to be imposed are ordained by the Act.  They cannot be departed from lightly or for flimsy reasons.  It follows therefore that a proper enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling, or not.”

 

6.           It follows that a court of appeal is required to determine whether the trial court erred in failing to find substantial and compelling circumstances which would justify a departure from the prescribed minimum sentence.

 

The relevant considerations

7.           The relevant circumstances other than those relating to the crime which have already been dealt with herein are as follows.

 

7.1    The appellant was 29 years old when the offences were committed and 32 years old when sentenced.  He attended school until grade 10, whereafter he had to work to help support his mother and siblings financially.  He excelled in this regard and demonstrated a good work ethic and a desire to improve himself.  To this extent the appellant, from humble beginnings, qualified himself as a security guard and later as an electrician.  At the time of the offences he was self-employed as a general building contractor and plumber.

 

7.2    The appellant is not married but has two children from different women who were both maintained by him.

 

7.3        The appellant has four previous convictions of which two are for assault with the intent to commit grievous bodily harm committed during 2007 and 2013 respectively.  For those convictions he received wholly suspended sentences.  During 2011 he was convicted of a contravention of s 1 of Act 1 of 1988 and was sentenced to pay a fine of R1 800, 00.  During 2014 he contravened the provisions of a protection order and was sentenced for the first time to a term of direct imprisonment.  The above – mentioned are in short the personal circumstances of the appellant which were placed before the trial court during his legal representative’s address on sentence. 

 

7.4        In addition it was argued on his behalf that he had shown remorse in that he had written a letter to the complainant in which he apologised to her and her parents for his deeds.

The trial court quite correctly in my view rejected this argument relating to remorse since his legal representative, on instructions from the appellant, denied during cross-examination of the complainant, that his apology related to the charges against him.

 

8.           The appellant in my view showed no remorse for his deeds, instead he put the complainant through the added trauma of having to give evidence of the degrading and humiliating way in which he had treated her and had been subjected to his ridiculous version of her consenting to perform oral sex on him.

 

9.           Aside from the appellant’s career path, which on its own is not substantial and compelling, there is nothing about his personal circumstances which could in any way be found to constitute substantial and compelling circumstances.  In fact his previous convictions, three of which are for acts of violence, and his lack of remorse would be a compelling endorsement for the trial court’s finding of the absence of substantial and compelling circumstances.

10.        The personal circumstances of an accused person is however not the only pivot around which the determination of an appropriate sentence revolves.  Rape and sexual violence against women have become so prevalent in this country that it has been recognized by the Supreme Court of Appeal to have “become a scourge in our society and the courts are under a duty to send a clear message, not only to the accused, but to other rapists and to the community that it will not be tolerated”.  (See S v Seedat 2017(1) SACR 141 (SCA) at paragraph 39; S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 (SCA)).

 

11.        The manner in which this offence was committed speaks of an utter disregard of the humanity and dignity of the complainant.  She was treated worse than a dog.  The fact that she had not incurred any serious physical injuries is in my view, in the circumstances of this case, of no great moment.  The psychological and emotional impact of the rape on the complainant was still evident during the course of the trial, more than two years after the incident.  She found it difficult to testify because of the emotional state she was in and the court had to adjourn on several occasions to accommodate her.  On the recommendation of a forensic social worker, the latter half of her evidence was given by means of closed circuit television.  It could not have helped her suffering and emotional trauma that the appellant is her cousin, a person she regarded as a brother.

 

12.        S v Ngcobo 2018 (1) SACR 479 (SCA), is a case in which the factual matrix is very similar to the one in casu.  In that matter the 23 year old appellant had dragged the 16 year old complainant some two to three kilometres away from her home.  He beat her with his fists, which left her with bruises on her legs and a swollen face.  He then raped her twice.  The appellant had no relevant previous convictions and had been steadily employed before his arrest.  The SCA rejected the argument that the sentence of life imprisonment imposed was disproprtianate to the offence and the interest of society and dismissed the appeal on sentence.

 

Conclusion

 

13.        In the circumstances I am of the view that there was no misdirection on the part of the trial court.  There are no substantial and compelling circumstances present which justify a departure from the prescribed sentence of life imprisonment.

 

In the result, the following order is made:

 

The appeal against the sentence imposed is dismissed.

 

 

 

 

 

 

CC WILLIAMS

JUDGE

 

 

I concur

 

 

 

K CHWARO

ACTING JUDGE

 

 

 

For Appellant:                     Mr. A Van Tonder

                                            Legal Aid SA

For Respondent:                  Adv. A Van Heerden

                                            Office of the DPP

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