S v Thunzi

• Jurisdiction: South Africa
• Judge: ED Bartman J and MI Samela J
• Judgment Date: 28 February 2014
• Docket Number: A555/13
• Court: Western Cape High Court, Cape Town
• Hearing Date: 28 February 2014
• Citation: 2014 JDR 0765 (WCC)

Samela, J

GENERAL INTRODUCTION

[1]

The Appellant was charged with contravening Section 3 of Act 32 of 2007, in Wynberg Regional Court. The allegations were that upon or about 24 October 2009, at or near Phillipi, the Appellant raped NS, a 10 year old girl.

[2]

The Appellant pleaded not guilty. In his plea explanation, he alleged that he was at a party at the time of the incident, and denied that he had sexual intercourse with the Complainant. He was sentenced to 18 years imprisonment with the leave of court a quo he now appeals to this court against conviction and sentence.

[3]

Mr Retief argued on Appellant's behalf that the court a quo erred in accepting that the Complainant was able to identify the assailant, applied the wrong test in analysing the evidence, and is of the view that the State failed to prove the guilt of the Appellant beyond a reasonable doubt. Further, he

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requested this court to set aside the sentence imposed by the court a quo, and impose a reasonable and appropriate sentence.

[4]

Ms Raphels for the State argued that the court a quo took into account all the important and relevant factors mentioned by Mr Retief.

LEGAL PRINCIPLES

[5]

The Complainant testified through an intermediary in terms of Section 170 A of the Criminal Procedure Act 51 of 1977 (as amended), and proceedings were in camera.

[6]

Section 3 of the Sexual Offences and Related Matters Act of 2007 ('the Act') provides that any person who unlawfully and intentionally commits an act of sexual penetration with another person without the latter's consent, is guilty of the offence of rape [1] .

[7]

The seriousness of rape clearly explained in S v Chapman [2] where the court per Mahomed CJ said:

"Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation. Women in South Africa are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the

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fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives. The Courts are under a duty to send a clear message to the accused in the present case, to other potential rapists and to the community that the Courts are determined to protect the equality, dignity and freedom of all women, and they will show no mercy to those who seek to invade those rights".

I concur with the sentiments stated by the court above.

[8]

Considering identification of the Appellant. It is that when dealing with identification, a court must ensure that a witness/es is/are not only honest, but regard must also be that the identification of the Appellant is reliable see S v Mthethwa [3] .

[9]

In evaluating evidence of a single witness, the trial court must be satisfied that the truth has been told and that the exercise of caution must not be allowed to displace the exercise of common sense, see S v Sauls and Others [4] .

[10]

It is trite that in a criminal trial, it is the state's duty to prove the guilt of the accused beyond a reasonable doubt, not beyond all shadow of doubt. Our law does not require that a court should act upon absolute certainty, but merely upon justifiable and reasonable convictions – nothing more and nothing less, see S v Ntsele [5] .

[11]

The imposition of an appropriate sentence lies within the discretion of a trial court. It is only when the trial court has misdirected itself, which misdirection should appear ex facie the court record, a court of appeal would not

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lightly interfere with the sentence imposed by the trial court, see R v Dhlumayo and Another [6] , S v Rabie [7] .

[12]

It is trite in applying the provisions of Act 105 of 1997 (the minimum sentence Act) should not be parted lightly for flimsy reason/s see S v Malgas [8] , S v Matyityi [...