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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: CA44/2017

In the matter between:

SHIMANE SHADRACK MARITSANE                                        Appellant

And

THE STATE                                                                                  Respondent

JUDGMENT.

GURA J:

Introduction

1. The appellant was convicted and sentenced to life imprisonment for an offence of housebreaking with intent to rape and rape. The Regional Court Magistrate in passing sentence invoked the provisions of Section 51(1) of the Criminal Law Amendment Act[1]. The present appeal is directed against the sentence. The appellant also applies for condonation because whereas he was sentenced on 16 February 2016, he only filed his application for leave to appeal with the Registrar on 17 September 2018.

Condonation.

2. In support of his application for condonation of his lateness in noting the appeal within the prescribed time limit, the appellant declared:

“5. On the 18^th August 2015 I appeared in the regional court held at Ga-Rankuwa before the presiding magistrate Ms Malete under case no. H22/2015

6. I was charged with one count of housebreaking with intent to rape and rape.

7. However, on the 16^th February 2016 I was convicted and subsequently sentenced to a term of life imprisonment. The court made an order that my particulars be endorsed in the Register for Sexual Offenders in terms of section 50 of Act 32 of 2007 and I was further declared unfit to possess a firearm.

8. On the 16^th February my legal representative Mr Komane consulted me on an appeal immediately after sentence while in the holding cells of Ga-Rankuwa regional court. He further advised me that he will arrange further consultation at Pretoria Central Prison.

9. I spent a period of a month at Pretoria Central Prison and received a transfer to Baviaanspoort Prison. I left a message to prison official to advise Mr Komane about my whereabouts if he comes to prison.

10. Ever since my transfer to Baviaanspoort Prison I did not see nor consult with Mr Komane.

11. On the 13^th August 2018 I consulted with Mr Gonyane from Mafikeng Justice Centre wherein I instructed him to prosecute my appeal on sentence only.

12. Mr Gonyane advised me that Mr Komane facilitated transcription of records of proceedings, prepared a charge sheet and exhibits which were sent to Mafikeng High Court Unit Manager to facilitate the process of appeal.

13. I am in custody and relied from the legal aid assistance as I was advised that it will not be wise to argue appeal on my own.

14. In the circumstances, I submit that the delay is not due to fault on my part, and was due to circumstances beyond my control”.

3. I have refrained from setting out the grounds of appeal because these are dealt with in the main judgment on the merits of the appeal.

4.    The applicant was sentenced on 16 February 2016. His notice of appeal was filed with the Registrar only on 17 September 2018. The extent of his lateness is therefore two years and seven months. The applicant is silent on what happened or what the applicant did in pursuance of his appeal between 16 February 2016 and 17 September 2018. The applicant is expected to state in full what happened between the said two dates. His explanation is incomplete and unsatisfactory. No confirmatory affidavit from the attorney who defended him at his trial has been attached.

5. It is trite law that the appellant must show good cause for his lateness in order to succeed. In S v Mantsha[2], the Court held that good or sufficient cause requirement has two elements; firstly the applicant must furnish a satisfactory and acceptable explanation for his delay. Secondly, he must show that he has a reasonable prospect of success on the merits of the appeal. In the case of Santam[3] the court laid down the criteria to be applied in an application such as this one. What must be considered is the degree of lateness and the explanation thereof; the prospects of success and the importance of the case.

6. Recently in Ndlovu v The State[4] Khampepe J, made the following remarks with reference to an application for leave       to appeal:

            “[31] The explanation given by Mr Ndlovu for the gross delay in making his            application to this Court is unsatisfactory. This Court takes a dim view of parties           disregarding its rules, and generally requires that a reasonable explanation be given          for a delay before it will grant condonation. In Grootboom v National Prosecuting      Authority, this Court held:

            “It is now trite that condonation cannot be had for the mere asking. A party seeking             condonation must make out a case entitling it to the court’s indulgence. It must show             sufficient cause. This requires a party to give a full explanation of the non- compliance with the rules . . . . Of great significance, the explanation must be reasonable enough to excuse the default.

            [32] However, the sufficiency of the explanation given for the delay is not wholly             determinative of whether condonation should be granted. The pertinent question to             consider is whether it would be in the interests of justice for condonation to be      granted.

            [33] In Brummer, this Court explained:

            “The interests of justice must be determined by reference to all relevant factors,   including the nature of the relief sought, the extent and cause of the delay, the nature          and cause of any other defect in respect of which condonation is sought, the effect on            the administration of justice, prejudice and the reasonableness of the applicant’s   explanation for the delay or defect.” 

7. In his heads of argument, counsel for the appellant has said absolutely nothing in support of the application for condonation. Regrettably, this is not what this Court expects from counsel. The appellant’s affidavit in support of is application (for condonation) lacks vital information. There are no reasonable prospects of success on appeal against sentence. Despite these criticism, I feel that it is in the best interest of justice that condonation should be granted. I now turn to deal with the appeal on sentence.

Factual background

8. The evidence of the state upon which the appellant was convicted is briefly that during the night of 13 December 2014, the appellant broke a window of the complainant’s house and entered through it. He then raped a 74-year-old lady therein. This lady was staying alone in this house. He had unlawful sexual intercourse with her three times on that particular night and departed at dawn.

Grounds of appeal

9. Three grounds of appeal were raised. The first is that in as much as the state did not charge the appellant with a second count of rape, read with section 3 of the Sexual Offences Act[5], life imprisonment was not a competent sentence since the offence on which the appellant was convicted, is not listed under Part I of Schedule 2 of the Minimum Sentence Act. The second ground of appeal is that if the court finds against the appellant in respect of the first ground, then in the alternative, the trial court should have found that the cumulative effect of mitigating factors constituted substantial and compelling grounds which justified a departure from the mandatory sentence of life imprisonment. Thirdly, the trial court had no power to direct that the appellant’s particulars should be endorsed in the Register of Sex Offenders in terms of section 50 of the Sexual Offences Act[6].

Analysis

10.  It is so that section 50 of the Sexual Offences and Related Matters Act, supra, lists certain types of rape cases where a sexual offender qualifies to have his/her name reflected in the Sexual Offences Register. A female rape victim aged 74 has been omitted in section 50. The literal grammatical meaning of the words which have been used in section 50 is clear and unambiguous. I am of the view that it is not proper, as the court a quo did, to interpret the provisions of this section as inclusive of a victim who is an old woman like the complainant in this case. The order relating to the endorsement of the appellant’s names in the sexual offences register cannot stand therefore. Various offences are included in part I of schedule 2. Counsel for the appellant is correct in his submission that house-breaking with intent to rape and rape is not listed in part I of schedule 2[7].

11.  Having said that, care should be taken because a rapist, who rapes a victim more than once qualifies himself/herself for life imprisonment. In this case, the appellant raped the complainant three times from different positions during that night. In my view, to adopt the view which is held by the appellant’s counsel would defeat the very same purpose of the legislation. The appellant’s conduct falls squarely within the ambit of section 51(1) of the Minimum Sentence Act.

Personal circumstances of the appellant

12.  He is a first offender and had spent fourteen months in detention as an awaiting trial prisoner. The appellant was 34 years of age at the time of sentence. He is unmarried but has one minor child, aged 3 years. The mother of this child is unemployed. Prior to his arrest, he was self-employed with an average income of R4000.00 per month. He passed standard 7 at school.  

13.  The duty to impose sentence is primarily the prerogative of the trial court and a court of appeal will not lightly interfere with the sentence imposed unless it is clear from the facts of the case that the trial court failed to exercise its sentencing discretion properly or the sentence induces a sense of shock[8].

In the court a quo

14.  In meting out sentence the Regional Court Magistrate took all the personal circumstances of the appellant into account. The court emphasised that because of the complainant’s advanced age (74 years) she fell within the category of vulnerable people within our society. It stated that any sexual violation of such a senior citizen calls for a stiff sentence. The trial court took into account the theories of punishment, emphasising retribution and deterrence. The trial court found that a suitable sentence was the one which would send out a message to the appellant and other would-be rapists as well as members of the community about the seriousness of the offence such as rape. Having referred to the relevant authorities, the court a quo kept in mind that the rape incidents occurred in the sanctity of the complainant’s house. In a well-reasoned judgment, the court a quo did consider the fact that the appellant had been in custody awaiting trial for fourteen months. It referred to S v Hadebe[9] and an unreported case of the Supreme Court of Appeal[10] where it was held that the period spent in prison awaiting trail, cannot on its own, constitute substantial and compelling circumstances.  

Evaluation by court

15.      In S v Chapman[11] the court stated that:

       “Rape is a very serious offence constituting, as it does, 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 civilization. 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. The appellant showed no respect for their rights. He       prowled the street and shopping malls and in a short period of one week he raped             three young women, who were unknown to him. He deceptively pretended to care for     them by giving them lifts and then proceeded to rape them callously and brutally,           after threatening them with a knife. At no stage, did he show the slightest remorse.

            The Courts are under a duty to send a clear message to the accused, to other      potential rapists and to the community: We are determined to protect the equality,                dignity and freedom of all women, and we shall show no mercy to those who seek to   invade those rights”.

16.      The complainant although she was raped thrice that night, each rape session was long and protracted. Seemingly, the appellant was not in a hurry. He only departed at dawn. It is not surprising therefore that the old lady could hardly walk to her pastor’s home that morning in order to seek help. The complainant was sexually assaulted because she had no money to give to the appellant. A brief reflection of the incident of that fateful night is important. The complainant, just like many other senior citizens in rural villages, was staying alone in this one roomed hut. She had been staying there for years but as at the date she testified in court, she was no longer staying there. Her only window to that dwelling had no window panes, it was closed with wood. The intruder simply broke the wooden window and gained entry into the house. At that time, 22h30, the old lady was in bed, fast asleep. She has a steel door without any burglar bars. In her peaceful sleep, she was awoken by a noise only to find that a stranger was walking inside her house, under the cover of darkness. The intruder suddenly grabbed her by her throat and demanded money. She retorted: “I have no money”. He then told her: “If you do not give me money, I am going to have sex with you”. The complainant then told him to do whatever he wanted to do.

17.      He turned her body on the bed so that she remained lying with her stomach, face down. The appellant, who was standing on the floor next to the bed, placed each of her legs on his respective shoulder. He then penetrated her. When it was almost time for him to ejaculate, he withdrew his penis from her and held his penis with his hand, walking in the room, and ejaculating on the floor infront of the wardrobe and the kist. When he finished to ejaculate, he came back to her. She was by then still on her bed. He threw her to the ground. He knelt down and again put each of her legs on his respective shoulders. He raped her for the second time. Just like the first sexual stint, when it was time for him to ejaculate, he went to ejaculate on the furniture. He came to her for the third session. He lifted her up and directed her to hold the chair with her body in a forward bending position. In this last third session he penetrated her from behind. The complainant testified that when he finished this round, it was already in the morning. He took the house key from the headboard, unlocked the door, and leisurely walked away.    

18.      In Vilakazi[12], Nugent JA, made the following remarks:

“The personal circumstances of the appellant, so far as they are disclosed in the evidence, have been set out earlier. In cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is employed, are in themselves largely immaterial to what that period should be, and those seem to me to be the kind of ‘flimsy’ grounds that Malgas said should be avoided”.

19.  I agree with the regional court magistrate that senior citizens are vulnerable to attacks such as these for they are, in my view, in most instances, harmless to any potential offender. With these facts in mind, this was a particularly serious sexual assault where the victim was treated with disrespect. A young man of 34 was not ashamed to undress an old lady who is likely to be the age of his granny. The appellant must have carefully planned his attack in advance. He knew that the victim was staying alone and that is the reason why he did not check if there was any other person inside that room before embarking on his sadistic dark and evil deeds. Under the circumstances, I am unable to find fault in the reasoning and conclusion of the trial court.

Order

20.  Consequently the following order is made:

20.1 The appeal against sentence is dismissed.

20.2. The sentence is confirmed.

20.3 The order of the court a quo in terms of section 50 of Act 32 of 2007 is set aside.

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree.

LEEUW JP

JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING:                               30 NOVEMBER 2018         

DATE OF JUDGMENT:                             18 APRIL 2019

COUNSEL FOR APPELLANT:                  MR T.G GONYANE

COUNSEL FOR RESPONDENT:            ADV M.C NONTENJWA

ATTORNEYS FOR APPELLANT:             LEGAL AID SOUTH AFRICA            

ATTORNEYS FOR RESPONDENT: NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

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