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Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Coram: LOUW, LE GRANGE et FORTUIN. JJ

Case No: A193/10

In the matter between:

GERT WATERBOER …...................................................................Appellant

And

THE STATE …............................................................................Respondent

JUDGMENT: 18 FEBRUARY 2011

LE_GRANGE_f J:-

[1] The Appellant was convicted of one count of rape involving the infliction of grievous bodily harm and two counts of assault with intent to do grievous bodily harm in the Regional Court, sitting at Vredendal. The Regional Magistrate, after the convictions, applied the provisions of section 52(1) of the Criminal Law Amendment Act 105 of 1997, and referred the matter to the

[2] In considering an appropriate sentence, the Court a quo found no substantial and compelling circumstances in favour of the Appellant justifying the imposition of a lesser sentence in respect of the rape conviction. The rape and assault counts in respect of the first complainant were taken together for the purpose of sentence and life imprisonment was imposed. The Appellant, for the second assault charge, was sentenced to 5 years' imprisonment which was ordered to run concurrently with the sentence of life imprisonment.

[3] The Appellant, with leave of the Court a quo, now appeals only against his sentence.

[4] The grounds of appeal against sentence are firstly, the minimum sentence regime is not applicable as the Appellant was not properly warned by the trial Court about the applicability of the minimum sentence and the consequences thereof. Secondly, the Court a quo misdirected itself by finding that there are no compelling and substantial circumstances justifying the imposition of a lesser sentence than the prescribed one.

[5] It is now well accepted that the Minimum Sentences Act, No 105 of 1997 as amended, has brought about a different approach to the consideration and evaluation pertaining to sentence. Courts are compelled by section 51 (1) and (2) of the abovementioned Act, to impose certain minimum sentences for specified crimes. A lesser sentence may only be imposed if a

Court is satisfied that substantial and compelling circumstances exist justifying a departure.

[6] The facts underpinning the convictions briefly stated, are the following: The complainant, Katriena Swartz, on the day of the incident, visited her boyfriend Jan Zimmerie and her sister on a neigbouring farm. It is not in dispute that she consumed a certain amount of alcohol during her visit. Later the day she decided to return home. Whilst walking to the farm where she resides, the Appellant, whom she knew, came from behind and suddenly grabbed and pushed her into the vineyards. She screamed and struggled to fight back but despite her efforts, the Appellant managed to undress and rape her. He also stabbed her with a knife on her forehead and in the abdomen.

[7] The complainant's boyfriend (Zimmerie) who came on the scene to assist her was also attacked. The Appellant stabbed him in the head with the knife. He also sustained facial injuries as a result of the fight between him and the Appellant.

[8] The stab wound in the abdomen of Swartz was serious and, it would seem, potentially life threatening. According to the medical report (J 88), the doctor suspected that the knife wound had penetrated her intestines. She was hospitalised for approximately a week and according to the complainant, she underwent an operation. This report also reveals that Swartz is small of stature and weighed only 28 kg.

[9] The Appellant testified in mitigation of sentence. He was 30 years old at the time of sentence and a farm worker. He attended school up to standard 5. He was living with his common law wife and has two minor children aged 7 years and 6 months old.

[10] The State tendered evidence of a social worker on sentence. The complainant informed her that as a result of the incident, she was afraid to walk alone at night. She knew the Appellant very well and she was very helpful to him when he arrived on the farm for the first time. The Appellant could have killed her and for that she resented him. The incidents had a severe negative impact on her subsisting love relationship. The fact that the perpetrator was a person known to her made matters worse.

[11] The Appellant is not a first offender. He has two previous convictions. In June 1990, he was convicted of assault and he was sentenced to 6 months' imprisonment. The sentence was suspended for a period of 5 years on condition that he was not convicted of assault, assault with intent to do grievous bodily harm, robbery or attempted robbery during the period of suspension and in respect of which he is sentenced to imprisonment without the option of a fine. A year after this conviction, in June 1991, he was convicted of rape for which he was sentenced to 10 years' direct imprisonment. He was released in January 1999 but was back in prison in June 1999 due to a violation of his parole conditions. He was released in January 2000 and only 9 months later, in October of the same year, he committed the present crimes. In addition, in November 2001, he was sentenced to 30 months imprisonment on charges of house breaking and theft which were committed either before the present offences or while on bail awaiting trial.

[12] Returning to the grounds of appeal. The contention that the trial Court failed to properly inform the Appellant about the rape offence that falls under the new minimum sentence regime, needs closer scrutiny. On 27 January 2003, before the proceedings were mechanically recorded, the following was hand recorded by the trial Court, "Beskuldigde verskyn. Hy stel nie belang in regshulp nie. Wil sy eie verweer behartig. Hy is meegedeel van die moontlikheid na verpligte vonnisse maar hy volhard dat hy self sy verweer wil behartig". When the proceedings were mechanically recorded and immediately after the Appellant pleaded to the charges proffered against him, the trial Court again warned him of the minimum sentences. The following is recorded at page 12 of the record: "Mnr. Waterboer, ons het nou ai hieroor gepraat Jy si hy wil self jou saak behartig. Ek het jou ingelig van die verpligte vonnisse ensovoorts. O/'s jou besluitnS? - • • Ja, Edelagbare."

[13] The trial Court at page 26 of the record and after the first complainant testified recorded the following:-

"Hof: Soos ek vir jou vroeergese het hier is 'n moontlikheid van verpligte vonnisse, as jy skuldig bevind word, lewenslange gcvangenisstraf. Seker jy wil nie 'n prokureur aanstel nie?

Beskutdigde: Nee Edelagbare".

[14] The Appellant, after the first complainant's evidence in chief, wisely decided to apply for legal assistance. A legal representative thereafter appeared on his behalf. It is evident from the warnings on record that the Appellant was made aware of the provisions of the Criminal Law Amendment Act and its applicability. The record also demonstrates the Appellant understood his rights in this regard. There is no indication on the record that the Appellant did not comprehend the implications that he may face the ultimate penalty if a conviction follows. It follows that the contention that the Appellant's trial was substantially unfair and resulted in prejudice as he was not properly informed of the minimum sentence regime, is without merit and can safely be rejected.

[15] In respect if the second ground of appeal, Mr. Burger argued that on a careful consideration, the sentence of life imprisonment is disproportionate taking into account the Appellant's personal circumstance, the seriousness of the offences and the interest of society and is a lesser sentence justified. Moreover, the rape the Appellant was convicted of may be serious in nature but not to the extent that it calls for the ultimate penalty.

[16] In S v Abrahams 2002 (1) SACR 116 SCA, at 127 (d) Cameron, JA (as he then was) held that:-

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