IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between: 

and

JUDGMENT

The appellant was charged and convicted of raping the complainant, Liesel Lottering, on 28 August 2004 in Parkdene, a residential area just outside George. He was sentenced to 10 years imprisonment, which is the minimum sentence prescribed for this offence. The appellant was legally represented throughout the trial.

The first of these witnesses was one Samuel du Preez. He testified that he saw the complainant being assaulted by the appellant on the night in question. Afraid to intervene, he raised the alarm by running to the complainant's mother's house and describing to her what he had seen. This resulted in the complainant's mother telephoning the police who, it would appear, notified the neighbourhood watch. Within minutes the police and members of the neighbourhood watch descended on the scene. The were taken by Du Preez to where he last saw the complainant and the appellant.

As I have indicated, Swartbooi and others chased this man, who was shortly thereafter apprehended by a Mr Van Buhlen, also a member of the neighbourhood watch. Mr Van Buhlen was not called as a witness, because he died before the trial took place. However, Mr Swartbooi told the Court that he never lost sight of the man who was caught by Mr Van Buhlen. That man was the appellant.

The Court was also told by Mr Swartbooi and a Captain Cornelius that whilst in custody, Captain Cornelius removed a condom from the appellant's penis. The Court also heard evidence, tendered by way of affidavits admitted in terms of section 212 of the Criminal Procedure Act, that the condom which had been handed in, had been examined and that it contained a DNA profile which matched that of the complainant.

The appellant's evidence was that he had been at Daniel's Tavern on the night in question and that when he was on his way home, he was apprehended for no apparent reason, taken to the police cells, not offered an explanation for his arrest, only to be told the following day that he was charged with rape. He denied that a condom was removed from his person by Captain Cornelius.

In the circumstances I am of the view that the appellant was correctly convicted by the magistrate and that his appeal against his conviction should fail. As regards his sentence, he was sentenced to 10 years, which is the prescribed minimum for this offence. In my view, there are no substantial and compelling reasons that we should interfere with that sentence. In the circumstances I am of the view that the following order should be made. The appellant's appeal against his conviction and sentence is refused.