IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER:A83/2010
DATE:	28 JULY 2010

In the matter between:

and

JUDGMENT

The complainant cried for help, but all in vain. When she arrived home she related her ordeal to her mother, who immediately telephoned the police. The police collected the complainant and Jaco from her home and arranged for her to be seen by a doctor. At the time of the incident, the complainant was doing Grade 8. The complainant was emotionally traumatised by the ordeal. She struggled to concentrate in class and as a result thereof, she failed Grade 8. The trauma which the complainant endured appears from the impact assessment report compiled by a social worker on 23 September 2004, some six years after the incident. It is indicated in the report that she had not put the experience behind her, it was still haunting her.

According to the psychological report compiled in respect of the appellant on 13 December 2004, at the time of the commission of the offences, the appellant was a 15 year old Grade 8 learner and was a first offender.

It is correct that punishment is pre-eminently a matter for the discretion of the trial court and an appeal court will not readily interfere with the exercise of that discretion in the absence of material misdirection.

The imprisonment sentence is called for in this case as the evidence reveals that the appellant was part of a group who gang raped the complainant. She was threatened with knives and her cousin, who accompanied her, was held hostage by two other suspects while the appellant raped her. The appellant did not show at all any respect for the complainant's rights. He treated her with disdain. This Court was urged by counsel for the appellant to impose a sentence in terms of section 276(1)(h), or alternatively section 276(1 )(i) of the Criminal Procedure Act 51 of 1977.