S v Seedat

• Jurisdiction: South Africa
• Judgment Date: 03 October 2016
• Citation: 2017 (1) SACR 141 (SCA)

S v Seedat
2017 (1) SACR 141 (SCA)

2017 (1) SACR p141

Citation	2017 (1) SACR 141 (SCA)
Case No	731/2015; [2016] ZASCA 153
Court	Supreme Court of Appeal
Judge	Tshiqi JA, Seriti JA, Saldulker JA, Mathopo JA and Fourie AJA
Heard	August 24, 2016
Judgment	October 3, 2016
Counsel	MM Hodes SC for the appellant.; A Coetzee for the state.

Flynote : Sleutelwoorde

Rape — Sentence — Restorative justice in terms of provisions of s 297(1) of Criminal Procedure Act 51 of 1977 — Inappropriate in rape case.

Appeal — By Director of Public Prosecutions — Against sentence imposed by provincial or local division on appeal occasioned by error on question of law — Such appeal competent in terms of provisions of s 311 of C Criminal Procedure Act 51 of 1977.

Headnote : Kopnota

The appellant, a 60-year-old man, was convicted in a regional magistrates' court of raping the 58-year-old complainant, to whom he had delivered a bedside lamp and groceries. After connecting the lamp and testing it, he pushed the complainant onto her bed where he raped her. He was regarded as a first D offender and was sentenced to seven years' imprisonment. On appeal to the High Court against the sentence, the court adopted a proposal made at the trial by the complainant that the appellant pay her compensation. It suspended the sentencing of the appellant for a period of three years on condition that he pay her the amount of R100 000 in instalments. The state appealed against the sentence on the grounds that it was incompetent and E invalid.

Held, as to the right of the state to appeal from a decision of a provincial or local division on appeal where it sought to set aside a decision occasioned by error on a question of law, that the appeal in the present case fell squarely within the scope of s 311 of the Criminal Procedure Act 51 of 1977 (the CPA) and the court had jurisdiction to entertain it. (Paragraph [30] F at 151h–152c.)

Held, further, that the postponement of sentence in terms of s 297(1) of the CPA was not available as a sentencing option in the matter as it specifically prohibited postponement of the sentence where the accused was convicted of an offence for which the law prescribed a minimum sentence. If, however, it was the intention of the High Court to invoke the provisions rather of G

2017 (1) SACR p142

A s 297(4) it could have done so, but it would then have had to impose a sentence for a specific term of imprisonment and then order that the operation of a part of it be suspended for a specified period not exceeding five years on any condition, including compensation. (Paragraphs [35]–[36] at 153a/b–e.)

Held, further, that although there were clearly substantial and compelling B circumstances that justified deviation from the prescribed minimum sentence, restorative justice was not an appropriate sentencing option in the matter. (Paragraph [38] at 153g–154c.)

Held, further, that without in any way endorsing the award of compensation for such an offence, the appellant's willingness to comply with what he thought to be a competent court order had to be taken into account in his favour. C In the circumstances the sentence imposed by the High Court had to be set aside and replaced by a sentence of four years' imprisonment.

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA) ([2011] ZASCA 186): dictum in para [20] applied

Director of Public Prosecutions v Olivier 2006 (1) SACR 380 (SCA) ([2006] 4 All SA 224; [2005] ZASCA 121): discussed D

Key v Attorney-General, Cape Provincial Division and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788; [1996] ZACC 25): dictum in para [13] applied

S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): E dictum in para [91] applied

S v Chapman 1997 (2) SACR 3 (SCA) (1997 (3) SA 341; [1997] 3 All SA 277; [1997] ZASCA 45): dictum at 5j – e applied

S v De Jager 1965 (2) SA 612 (A): applied

S v EB 2010 (2) SACR 524 (SCA) ([2010] ZASCA 71): referred to

S v Heller 1971 (2) SA 29 (A): referred to F

S v Hewitt [2016] ZASCA 100: compared

S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): dictum in para [29] applied

S v Marais 2010 (2) SACR 606 (CC) ([2010] ZACC 16): referred to

S v Maseola 2010 (2) SACR 311 (SCA) ([2010] ZASCA 37): referred to

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) ([1997] 2 All SA 185; [1997] ZASCA 7): dictum at 518b – f applied G

S v Mulula [2014] ZASCA 103: referred to

S v Munyai and Others 1993 (1) SACR 252 (A): referred to

S v Nabolisa 2013 (2) SACR 221 (CC) ([2013] ZACC 17): referred to

S v Ndweni and Others 1999 (2) SACR 225 (SCA): dictum at 227e applied

S v Seedat 2015 (2) SACR 612 (GP): appeal against sentence upheld

S v Zinn 1969 (2) SA 537 (A): referred to. H

Legislation cited

The Criminal Procedure Act 51 of 1977, ss 297(1), (4) and 311: see Juta's Statutes of South Africa 2015/16 vol 1 at 2-396 and 2-401 – 2-404.

Case Information

MM Hodes SC for the appellant. I

A Coetzee for the state.

An appeal from the Gauteng Division of the High Court, Pretoria (Mavundla J and Strauss AJ sitting as court of appeal), reported sub nom J S v Seedat 2015 (2) SACR 612 (GP).

2017 (1) SACR p143

Order A

1.

The appeal against the conviction is dismissed.

2.

The appeal by the state against the sentence imposed by the High Court is upheld.

3.

The sentence imposed by the High Court is set aside and is substituted as follows: B

'The accused is sentenced to four years' imprisonment.'

Judgment

Tshiqi JA (Seriti JA, Saldulker JA, Mathopo JA and Fourie AJA concurring):

[1] The appellant, Mr Aboo Baker Seedat, age 60 at the time, was C charged in the Schweizer-Reneke Regional Court with rape, read with the provisions of ss 51 and 52 of the Criminal Law Amendment Act 105 of 1997 (the minimum-sentence legislation). He had legal representation and pleaded not guilty. It was alleged that he raped JM, then a 58-year-old woman, by inserting his penis into her vagina. He was convicted and sentenced to seven years' imprisonment and was at the D time of the sentence aged 63 years.

[2] The rape for which the appellant was convicted allegedly occurred at the complainant's home in her bedroom. It is common cause that on the day of the alleged incident the appellant, a general dealer, visited the complainant's home in order to deliver a bedside lamp and groceries that E were bought by the complainant's daughter from the appellant's shop. When he arrived the complainant was alone in her home and she allowed him to enter the house and also permitted him to enter the bedroom, apparently to test whether the lamp was in working condition. He connected the lamp and they were both satisfied that it was indeed in working condition. F

[3] Their respective versions on what occurred thereafter differ. The complainant testified that, as she turned around to leave the bedroom, the appellant grabbed her, threw her against the dressing table, pulled off her trousers and panties, picked her up and threw her on her G back and penetrated her from behind and had anal intercourse with her. Thereafter he turned her around and had vaginal intercourse with her. After finishing, he then left. She stated that during the incident she screamed, but no one heard her.

[4] She ran outside screaming, but no one was there. She then went back H into the house and tried to phone the police at Schweizer-Reneke, but her phone-call was not picked up. She then dialled her daughter's cellular phone number so as to send her a 'missed call'. When her daughter called her back, she accused her of having sent the appellant to her house, but this she said was 'want ek was baie I geskok en dit was baie lelik wat ek vir haar gesê het. En sy het gedink ek maak 'n grap.' She thereafter cleaned herself because she was full of blood between her legs and the blood was running down her legs. She drank sleeping pills and went to her bed, and slept. The next day she woke up around 10h00, drank coffee, ate and paced around in her house. When her domestic worker came to her house, she told her about the incident and the J

2017 (1) SACR p144

Tshiqi JA

A domestic worker in turn called the complainant's neighbour who was also informed about the alleged incident. When her daughter ultimately came the complainant was accompanied to the police station and thereafter to hospital where she was examined by a medical practitioner, Dr DM Nganda.

B [5] A medico-legal-examination report completed by Dr Nganda after the examination (J88) was admitted into evidence by agreement between the parties and its contents were not in dispute. In fact, defence counsel admitted it in terms of s 220 of the Criminal Procedure Act 51 of 1977 (the Act). As a result Dr Nganda, who was available, was not called to testify. He recorded the following findings on the J88:

C '(P)atient was anxious, stressed and crying that day.

Clinical findings

After my physical, psychological and genital examination there is evidence probable of dry penetration.

From genital organ there was abrasion on perennial area.

D From anus there is traumatic lesion with penetration.

Gynaecological Examination:

Painfully, Labia majora inflamed

Fourchette: Abrasion

Perineum, anus: perineum abrasions and inflamed anus

E Discharge, haemorrhage: slight blood.'

On the schematic drawing Dr Nganda noted that there was an abrasion on the vaginal area and that the anus was inflamed. In response to a standard question in the J88 on whether the person bathed, urinated, douched or changed clothing since the alleged offence took place, the doctor circled 'no' as the applicable option.

F [6] The state also led the evidence of the complainant's...