S v Mathiane
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | GC Muller J and MM Mokadikoa-Chauke AJ |
| Judgment Date | 10 February 2022 |
| Docket Number | A23/2021 |
| Hearing Date | 10 February 2022 |
| Court | Limpopo Division, Polokwane |
| Citation | 2022 JDR 0735 (LP) |
Muller J:
The appellant was charged with and was convicted of housebreaking with the intention to rape and of contravening section 3 of Act 32 of 12007 read with section 51(1) and Schedule 2 of the Criminal Law Amendment Act, Act 105 of 1997, and robbery with aggravating circumstances, also read with the provisions of Act 105 of 1997.
Muller J
It was alleged in the charge sheet that the appellant had intercourse with the complainant, who is a vulnerable woman of 72, without her consent and that he had robbed her of her cell phone.
He was sentenced to life imprisonment on the first count and to 15 years imprisonment, on the second. The appeal is against both the convictions and the sentences imposed.
No plea explanation was offered by the appellant at the commencement of the trial. The state first called the medical practitioner who examined the complainant on 28 January 2019. He testified that he examined the complainant who was 71 years of age. He noted his findings on a form J88. She informed him that she was raped on 27 January 2019 and presented, on examination, with a fresh tear, measuring 0.4 x 0.2 cm at 7 o'clock of the vagina. He described her condition as sad with blunt trauma to the vagina. Vaginal swabs were obtained which he handed over to detective sergeant Langa. Apart from the tear referred to above no other injurie were observed. The witness neglected to record the seal number of the seal in respect of the swab taken by him on the form (J88).
The complainant testified that she lived alone at the time. She went to bed and fell asleep. She woke up at about 03h00. She heard footsteps outside her house. Somebody hit the door which opened. Due to her swollen leg, she was unable to get up from her bed. A person wearing a long. and large jacket and balaclava entered her room and ordered her to remain silent and to cover herself. He approached the bed and climbed on top her. He removed the blanket with which she had covered herself and demanded money from her. He
Muller J
then ordered her to lie on her back and to open her legs and proceeded to have intercourse with her. Whilst he was busy having intercourse with her she got hold of his one hand and bit one of his fingers. He grabbed her by the neck and strangled her. He had a knife. He poked her with the knife on the neck several times at the same time threatening to cut her throat with the knife. He continued to have intercourse with her until he was satisfied. He struggled to pull her up in order for the complainant to show him where she had hidden her money. She informed him that she is unable to walk due to her swollen leg. She testified that the leg has screws and because the leg was lifted up some of the screws became loose. Her cell phone was on the headboard. He took her phone. He told her not to scream and left. She waited a while before she was able to shuffled to the window and shouted for help. A neighbour came to render assistance. She handed the key to the door to her through the window to allow the neighbour to enter the house but the door had already been opened. The police were called. She informed the police that is unable to walk. They assisted her to obtain her walking stick. At the hospital she was unable to climb onto a bed unassisted. The doctor attending her decided to detain her in hospital until she could be examined. She remained in hospital for two nights.
After she returned home she discovered that a window...
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