IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE, HIGH COURT, CAPE TOWN)
CASE NO. A543/2009
In the matter between:

And

JUDGMENT DELIVERED ON 25 MARCH 2010
DLODLO, J
[1] On the night of 1 May 1998 and at the premises of Rio Grande School in Manenberg, Cape Town, the Appellant caught and threw the complainant to the ground near a tree. He proceeded to pull down her panties and undressed himself of his trousers. The Appellant then forced himself on the complainant and had sexual intercourse with her without her consent. The Appellant whilst busy having intercourse with the complainant withdrew his penis from her vagina and forced same into her mouth directing her to suck the penis. She did it. When he wanted to penetrate her anally, she successfully pleaded with him not to do so. He then proceeded penetrating her vaginally. After he finished having sex with her vaginally, he did proceed to turn her around and had sexual intercourse with her per anus forcing her to submit thereto by hitting her in the face. He was convicted of rape as well as indecent assault. The Appellant was sentenced to undergo imprisonment for life on the rape count. He was sentenced to undergo imprisonment for seven years on the indecent assault count. However, the Court directed that the sentence on the indecent assault count shall run concurrently with the sentence of life imprisonment. The Appellant has appealed to this Court against sentence imposed on him.

See record pages 26-27'.

Therefore the Minimum Sentences regime cannot be applied in the instant case because the Appellant was never so alerted. This finding further strengthens the fact that this matter fell to be finalized by the Regional Court. The then sentencing jurisdiction of the Regional Court was a term of imprisonment not exceeding fifteen years.

"[17] The rapes that we are concerned with here, though very serious, cannot be classified as falling within the worst category of rape. Although what appeared to be a firearm was used to threaten the complainant in the first count and a knife in the second, no serious violence was perpetrated against them. Except for a bruise to the second complainant's genitalia, no subsequently visible injuries were inflicted on them. According to the probation officer - she interviewed both complainants - they do not suffer from any after-effects following their ordeals. I am sceptical of that but the fact remains that there is no positive evidence to the contrary. These factors need to be taken into account in the process of considering whether substantial and compelling circumstances are present justifying a departure from the prescribed sentence.

[19] Of course, one must guard against the notion that because still more serious cases than the one under consideration are imaginable, it must follow inexorably that something should be kept in reserve for such cases and therefore that the sentence imposed in the case at hand should be correspondingly lighter than the severer sentences that such hypothetical cases would merit. There is always an upper limit in all sentencing jurisdictions, be it death, life or some lengthy term of imprisonment, and there will always be cases which, although differing in their respective degrees of seriousness, nonetheless all call for the maximum penalty imposable. The fact that the crimes under consideration are not all equally horrendous may not matter if the least horrendous of them is horrendous enough to justify the imposition of the maximum penalty. "

"The Appellant (Accused) is sentenced to undergo imprisonment for the period of fifteen years for the rape charge and seven years for the indecent assault charge. The period of imprisonment for the indecent assault is ordered to run concurrently with the sentence on the rape count - in terms of Section 280 (2) of the Criminal Procedure Act 51 of 1977 as amended. It is further ordered that this sentence is antedated to 29 May 2000. "

DLODLO, J

YEKISO J

CLEAVER, J