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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)        NOT REPORTABLE

(2)        NOT OF INTEREST TO OTHER JUDGES

(3)        REVISED.

CASE NUMBER: A620/2016

1/6/2018

 

 

In the matter between:

 

OBIDIKE IFAENYI                                                                                                     Appellant

 

and

 
THE STATE                                                                                                                  Respondent

 
JUDGMENT

NAIR AJ

[1]           The appellant was arraigned in the Tsakane Regional Court on one count of rape. He was legally represented and pleaded not guilty. He was convicted and sentenced to life imprisonment. This is an appeal against both conviction and sentence.

[2]           The background facts are the following: The complainant, who was 11 years at the time, had returned from hospital following a minor medical procedure. She went to bed to take a rest. Whilst she was lying asleep, the appellant who was her sister's boyfriend and well known to her, covered her face with a cloth and raped her. At the stage that she woke, he had already removed her clothing.

[3]           She immediately reported the incident to her sister and an elder. The complainant was taken to a doctor on the same day. Ms M Z confirmed that she saw the complaint leaving the house with tears in her eyes and a report was made to her.

[4]           She physically examined the complainant and found that she was wet around her vaginal area. M, the complainant's sister noticed that the complaint wanted to tell her something and the appellant was running after the complainant asking why she was crying.

[5]           The complainant reported that the appellant had raped her. The medical J88 which was handed in by consent 'reflects the presence of genital injuries and discharge suggesting sexual intercourse'. In addition the following s1 endorsed on the J88; 'Abrasion of the perineum and bruise on the posterior fourchette'

[6]           The appellant denied having raped the complainant and stated that this was a fabricated case against him arising out of an argument between the complainant's sister and himself. He stated that the complainant's sister fought with him and they had quarrelled because she would take his money to buy liquor. On the day in question they argued and he was preparing to leave to Mpumalanga. This was denied by D (the sister) and answered somewhat vaguely by the complainant.

[7]           In S v Hadebe, 1997 (2) SACR 641 (SCA) at 645 e - f the court re- emphasised the following principles applicable to appeals:

"Before considering these submissions it would be as well to recall yet again that there are well-established principles governing the hearing of appeals against findings of fact. In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The reasons why this deference is shown by appellate Courts to factual findings of the trial court are so well known that restatement is unnecessary".

[8]          The conviction is assailed on the grounds that the version given by the appellant was reasonably possibly true and that the evidence shows that the complainant had the motive to falsely incriminate the appellant.

[9]          The evidence of the complainant is corroborated by all the witnesses and the J88 which was handed in by consent. The evidence that the appellant came running after the child to establish why she was crying serves as corroboration that something had happened to her.

[10]       It is improbable that if the appellant was supporting the complainant's sister financially that she would lay a false charge against him to prevent him leaving her because in any event he would be incarcerated and no longer able to support her.

[11]        I am guided by the judgment in S v Sauls and Another 1981 (3) SA 172 (A) where the following is stated:

'the trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.'

[12]      The learned magistrate gave careful consideration to the question whether the appellant's version is reasonably possibly true and correctly rejected the defence version that the case was a fabrication because of a quarrel. The objective evidence contended in the J88 also militates against the proposition of a fabrication. I cannot agree with Mr Botha for the appellant that his version is reasonably possibly true and in the result the appeal against conviction stands to be dismissed.

[13]      The sentence is assailed on the grounds that the Magistrate ought to have found that there were substantial and compelling circumstances present which necessitated a departure from the prescribed minimum sentence.

[14]      It is trite that sentencing is a matter pre-eminently in the discretion of the trial court. The court of appeal may interfere with the sentence discretion of the trial court, if it is not judicially exercised. The test is whether the sentence imposed by the trial court is shockingly inappropriate or vitiated by misdirection and irregularities See S v Rabie 1975 (2) SA 537 (A) and S v Anderson 1964 (3) SA 494 (A).

[15]        The trial court took into account the mitigating factors including that the appellant was 32 years old. His country of origin is Nigeria and it is not disputed that he had a difficult childhood. He is a first offender and has spent about I year awaiting trial. The trial court had the benefit of a social workers report and a correctional supervision officer's report and clearly relied on the extensive information contained therein. The learned magistrate also had the benefit of a victim impact assessment report which inter alia concludes that the appellant shows no insight into his conduct or remorse for same.

[16]        The learned magistrate was also alive to the words of caution sounded in S v Malgas 2001 (1) SACR 469 (SCA) at 477 d - f. In Malgas at para 25 the SCA laid down the following determinative test:

'If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal, and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.'

 

[17]        The appellant abused the position of trust that he had being the boyfriend to the complainant's sister. The complainant was very young and vulnerable especially as she was unwell on the day in question. It is clear that the seriousness of the offence weighed more heavily in the mind of the learned Magistrate. I cannot fault the approach taken. I deem it appropriate to repeat the following extract from S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA):

'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.'

 

[18]        Having regard to the aggravating factors and the interests of society I cannot fault the approach adopted by the trial court in sentencing the appellant. However, a court should be mindful of the fact that, even if life imprisonment is a prescribed minimum sentence, it is the ultimate penalty a court can impose. The imposition of such a penalty should not be disproportionate to the circumstances of a particular case. This principle has often been restated by the

Supreme Court of Appeal.

[19]        Accordingly, the sentence of life imprisonment should be substituted by one of 20 years imprisonment which I find proportionate to the crime in question.

[20]        ORDER

1.         The appeal against conviction is dismissed.

2.         The appeal against sentence succeeds and the sentence        of life imprisonment is substituted by one of 20 years imprisonment.

 

 

 

D NAIR

Acting Judge of the High Court

Gauteng Division, Pretoria

 

I agree and it is so ordered

 

 

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

 

 

Date of Hearing: 28 May 2018

 

Judgment delivered: 01 June 2018

 

APPEARANCES:

For the Appellants:                             Mr M Botha

Attorney for Appellants:                     Pretoria Justice Centre, Legal Aid,

Pretoria

 

 

For the Respondent:                              Adv. M. J Nethononda

Attorney for Respondent:                     Director Public Prosecution, Pretoria

 

 

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