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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

WANDILE MATHOLE APPELLANT

and

STATE RESPONDENT

• Case Number: CA&R13/2007

• High Court: EASTERN CAPE DIVISION

HEARD: 31/10/07

DATE DELIVERED: 31/10/07

JUDGE(S): PLASKET J

LEGAL REPRESENTATIVES -

Appearances

• for the Appellant(s): Adv. Kazer

• for the respondent(s): Adv. Obemeyer

Instructing attorneys:

• Appellant(s):

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings : Appeal

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA&R13/2007

DATE HEARD:31/10/07

DATE DELIVERED:31/10/07

NOT REPORTABLE

In the matter between:

WANDILE MATHOLE APPELLANT

and

THE STATE RESPONDENT

JUDGMENT

______________________________________________________________

PLASKET J

[1] The appellant was convicted, in the Regional Court, East London of rape. He was sentenced to 15 years imprisonment and now appeals against that sentence.

[2] Before turning to the facts, it is necessary to record that, in terms of s 51(2)(b) of the Criminal Law Amendment Act 105 of 1997, read with Part III of Schedule 2, the minimum sentence prescribed for the type of rape committed by the appellant is ten years imprisonment. It must be stressed, however, that this sentence is a minimum and not necessarily the appropriate sentence in all circumstances.

[3] On the morning of 24 January 2007, the complainant was on her way to work when she was accosted by the appellant who forced her at knife-point from the road on which she was walking into the bush. He told her that he wanted her cell-phone and her wallet. She gave these items to him. He ordered her to take off her clothes and when she refused he slapped her in the face. He also threatened to stab her. These threats induced the complainant to undress. After she had done so, the appellant raped her.

[4] After the appellant had raped the complainant he told her that he intended killing her to prevent her telling anyone what had happened. The complainant pleaded with the appellant not to kill her but all that her pleas appeared to do was to make the appellant angry and abusive.

[5] Eventually she persuaded him that if he accompanied her to her home, she would have sex with him again. When they set off for her home the appellant returned the complainant’s cell-phone and wallet to her.

[6] When the complainant was close to her home, she devised a pretext to go into the home of a neighbour. She informed her neighbour what had happened to her, the alarm was raised and people in the vicinity pursued the appellant. He escaped but was apprehended a short while later.

[7] The complainant suffered relatively minor physical injuries in the form of cuts and scratches, including a cut below the right eye, from being dragged into the bush by the appellant. She was also slapped in the face by him on two occasions. The record of her gynaecological examination states that tears in her vagina were observed, that a discharge was present and that she bled.

[8] The appellant’s version that he and the complainant had had consensual sex was correctly rejected by the magistrate. The appellant was 20 years old. He has a previous conviction for robbery for which he was sentenced, on 14 January 2005 to seven years imprisonment, subject to s 276(1)(i) of the Criminal Procedure Act 51 of 1977. On 25 April 2006 his sentence was converted to correctional supervision until 13 July 2009. He committed the rape of the complainant a mere nine months after his release from prison and while he was serving a sentence of correctional supervision for a crime of violence.

[9] In his judgment on sentence the magistrate took into account the relative youthfulness of the appellant and that he had been in custody awaiting trial for more that six months. Those are, in truth, the only mitigatory factors that can be found. As against these factors a number of aggravating factors weigh heavily against the appellant. These include his previous conviction for another crime of violence, the brazen and violent manner in which the crime was committed and the effect of this terrible experience on the complainant, particularly the death treats that she was subjected to. The facts of the case, as set out above, are sufficient illustration that this was a serious case of rape demanding of stern punishment.

[10] It is clear too that the interest of society, especially of women to be protected from this type of violent, predatory conduct, was an important factor for the magistrate when he determined an appropriate sentence. He was certainly correct in this respect.

[11] In my view, neither the magistrate’s approach to sentence nor the sentence he imposed can justifiably be criticised. There is, in other words, no indication on the record that the magistrate misdirected himself and it certainly cannot be said that the sentence is shockingly inappropriate. That being so, there is no basis for interference on appeal.

[12] The appeal is accordingly dismissed.

_________________

C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

__________________

L. E. LEACH

JUDGE OF THE HIGH COURT

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