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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO.: A271/2015

DATE: 11 DECEMBER 2015

In the matter between:

E. MASHILO.....................................................................................................................APPELLANT

And

THE STATE....................................................................................................................RESPONDENT

JUDGMENT

1. This is an appeal by leave of the High court of the Northern Circuit against the sentence imposed upon the appellant on 15 June 2005. The appellant was charged with one count of rape and convicted as charged by the Magistrates' Court sitting in Mankweng on 5 July 2004. The Magistrate was of the view that the appellant had raped the complainant twice, and consequently stopped the proceedings and referred the matter to the High Court for sentence in terms of Act 105 of 1997.

2. The High Court confirmed the conviction and proceeded to sentence the appellant. The court sentenced the appellant to life imprisonment for the sole reason that the law required such a sentence unless substantial and compelling reasons existed. The court found that none such reasons existed.

3. The facts of the case may briefly be referred to as follows: According to the charge sheet the appellant was charged with one count of rape in that he had sexual intercourse with the complainant on 17 August 2003 without her consent. On the day in question, at approximately 19:00 the appellant and his cousin, Mr Michael Mailula, came across the complainant, who was 17 years of age at the time, in one of the streets in Seshego. The appellant's intentions were clear, he wanted to have sexual intercourse with the complainant. The complainant refused the appellant's attentions whereupon he grabbed her by the hand and started pulling her towards an open area. Mr Mailula tried to convince the appellant to let the complainant go and actually tried to pull her from his grip. The appellant would not relent and in fact produced a knife with which he threatened the complainant. Mr Mailula realised that there was nothing he could do and went home. A few hours later the appellant came to his house and admitted that he had raped the complainant. A day later the complainant recognised Mr Mailula and this eventually led to the arrest of the appellant.

4. The complainant testified that she was grabbed by the appellant who wanted her to go with him. She refused and actually pleaded with him but he produced a knife and threatened to use the knife on her. They came across another male person with whom she pleaded to assist her but that person refused and went away. The appellant pulled her into an open area where he undressed her, instructed her to lie on the ground, and proceeded to rape her.

5. The evidence of the complainant which I regard as important for purposes of this appeal, was reflected on page 26 line 19 as follows:

"And when he had sexual intercourse with you, did you feel any pain? — No.

Now, did he (inaudible) sperms inside of you? — Yes.

Now after he was finished raping you, then what happened? — He told me that (inaudible) he want to repeat.

And then? --- And then he (inaudible) to repeat himself.

So he raped you twice? — Yes."

6. At the end of the trial the Magistrate found the appellant "guilty as charged" without stating any reasons. On a later occasion the reasons for the conviction were provided and according to the court the main issue was the appellant's alibi and whether he was the person who had raped the complainant.

The trial court rejected the evidence of the appellant. At the end of his reasons the magistrate stated that he was satisfied that the prosecution has proved its case beyond reasonable doubt, that the accused is the one who actually dragged the complainant up to the river, threatened her with a knife and "had sexual intercourse with her twice, without her consent."

7. It is clear that this finding that the appellant had raped the complainant twice resulted in the trial court stopping the procedure and referring the matter to the High Court for confirmation and sentencing. This was the procedure to be followed according to the provisions of Act 105 of 1997 when a sentence of life imprisonment was prescribed by this Act.

8. According to section 51(1) of the Act read with Part I of Schedule 2 thereof, a sentence of life imprisonment is prescribed, unless substantial and compelling circumstances exist to impose a lesser sentence, if an accused is convicted of rape, inter alia, in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice. Part III of Schedule 2 provides that if the rape was committed in circumstances other than those referred to in Part I, the prescribed sentence for a first offender is imprisonment for a period not less than 10 years.

9. When the High Court considered the matter the court expressed itself in the last paragraph as follows:

"Under the circumstances, quite apart from the other surrounding evidence, I am satisfied that the conviction is in order and consequently you are found guilty of the rape that you were charged with. The conviction is confirmed.''

10. For purposes of sentence the appellant testified on his own behalf. As stated before, the High Court eventually convicted the appellant to life imprisonment.

11. The mitigating circumstances were briefly the following: the appellant had been in custody awaiting trial for approximately one year and 10 months prior to his sentence. He had an unrelated previous conviction for housebreaking. The appellant was 24 years old when he was sentenced. He was single but was in a relationship and maintained a five-year-old child. He was the primary caregiver of the child as the mother was unemployed. He was partly literate and only went up to standard 3 at school. He did small jobs on contract and only earned approximately R200.00 per fortnight. He was not enjoying good health as he was earlier involved in an accident for which he underwent surgery to his head. He was still receiving medical treatment at the time.

12.On behalf of the appellant it was submitted that substantial and compelling circumstances exist to impose a lesser sentence and on behalf of the prosecution it was submitted that no such circumstances exist.

13. In my view the court a quo erred in sentencing the appellant to life imprisonment for the reason that Act 105 of 1997 prescribed such a sentence.

Firstly, the appellant was never charged for raping the complainant more than once. He was charged with one count of rape. I have referred above to the evidence of the complainant where she, almost as an aside, mentioned that the appellant wanted "to repeat". The prosecutor then asked the question "so he raped you twice?", and the complainant answered "yes".

14. In my view this evidence is not sufficient to come to a conclusion that the appellant had raped the complainant more than once as envisaged in Act 105 of 1997. Our courts have often found that the provisions of Part I of Schedule 2 require a truly separate act of rape and that the provisions would not apply if an act of intercourse was briefly interrupted for some or other reason. For example, a changing of bodily position or even a continuation after there had been a first ejaculation, would not change what is in reality one act of sexual intercourse into two separate acts of sexual intercourse. In casu there was no proper investigation of what exactly happened and whether it can be found that there were actually two separate acts of rape.

15. Furthermore, and in any event, the charge sheet did not refer to the provisions of Act 105 of 1997 and neither was the appellant informed that the provisions of that Act would be relevant for purposes of his trial. The fact that reference was made to the provisions of the Act prior to the sentencing procedure does not change anything. It is trite that failure to inform an accused that the State would rely on the provisions of Act 105 of 1997 in the event of a conviction, constitutes substantial and compelling circumstances for purposes of sentencing.

16.1 reiterate that the appellant was correctly convicted of the one count of rape with which he was charged. Consequently, in terms of Part III of Schedule 2, the prescribed sentence is one of 10 years imprisonment unless substantial and compelling circumstances exist to impose a lesser sentence.

17. Having found that such circumstances do exist this court must decide what a just and justifiable sentence would be in the circumstances of this case. In order to do so this court has to consider all the factors traditionally relevant to sentencing. These are the legitimate needs and interests of the accused as well as of the society and the nature of the crimes and the circumstances attending its commission. The court must consider all these factors and all the facts of the particular case, in conjunction. These factors must also be considered in light of the fact that the legislature indicated that the sentence which should normally be regarded as appropriate for offences of this nature, if no substantial and compelling circumstances are present, is one of 10 years imprisonment.

18. The needs and interests of society in regard to rape are clear. So are the interests of the victim. Rape is a horrible crime. It is a crime of violence which strikes at the heart of the right to personal integrity and self-esteem and the right to privacy. It was in fact in response to the public outcry against the number of rapes perpetrated in our country that the legislator decided to provide for minimum sentences unless substantial factors are present, and, generally, by providing for a legislative standard that requires consistently higher sentences in respect of the serious crimes mentioned in the Act.

19. In the present matter the complainant fortunately did not suffer physical injuries. The more serious effect was the psychological trauma which she suffered and which she will continue to suffer for a very long time, if not the rest of her life. A Social Worker's Report was presented in evidence. According to the report the complainant suffered from serious psychological sequelae and showed signs of depression and anxiety. Her social life has also been detrimentally affected and she is afraid to socialise with other people. According to the Social Worker the complainant’s life has been greatly affected by the sexual assault on her. These debilitating effects will in all probability last for a very long time.

20. An aspect of relevance relates to the appellant's previous conviction. The previous conviction does not relate to the present crimes and he should consequently for all practical purposes be regarded as a first offender. However, I must also consider the fact that the appellant saw it fit to use a knife and to threaten the complainant with it. What is more, the appellant ignored the pleas of the complainant and the efforts of Mr Mailula to convince him to let the complainant go. He also scared another person away who would otherwise have helped her. He also subjected the complainant to a rather prolonged rape and intended to keep her with him through the night if not longer. Fortunately she succeeded in making her escape but these circumstances were extremely traumatic for the complainant. These factors enhance the moral reprehensibility of his deed in a high degree.

21. I have also considered the personal circumstances of the appellant and did so in conjunction with the aforesaid facts and the circumstances of the case.

I have also considered the time spent as an awaiting trial prisoner.

22. Having regard to all the relevant factors of the present case, as well as the aggravating and the mitigating circumstances, I am of the view that despite substantial and compelling circumstances being present for the reasons mentioned above, even the prescribed sentence would not be just and justifiable having regard to the triad of factors traditionally relevant to sentencing as well as the facts and circumstances of this particular case.

Accordingly the following order is made:

1. The appeal against sentence succeeds and the sentence of the Court a quo is set aside and replaced with the following order:

"On count 1 the count of rape, the accused is sentenced to 12 years' imprisonment."

2. It is further ordered that the aforesaid sentence is backdated to the date of the original sentencing of the appellant namely 15 June 2005.

C.P. RABIE

JUDGE OF THE HIGH COURT

I concur

L.M. MOLOPA

JUDGE OF THE HIGH COURT

I concur

P.M. MEYER

JUDGE OF THE HIGH COURT

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