Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT CAPE TOWN)

Coram: LE GRANGE, J et SABA, AJ

Reportable-

In the matter between:
ELTON EVERTS	Appellant
And
THE STATE	Respondent
Appeal was heard on 18 February 2011.
Judgment was handed down by Judge A Le Grange on 31 May 2011.
Counsel for Appellant:	Adv LA Base
Counsel for Respondent: Adv SFA Raphels

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Coram: LE GRANGE, J et SABA, AJ
Case No: A497/10
In the matter between:
ELTON EVERTS	Appellant
And
THE STATE	Respondent
JUDGMENT: 31 May 2011

[3] The Appellant was sentenced to a term of ten (10) years' direct imprisonment on the robbery counts and a further fifteen years on the remaining counts, resulting in an effective term of 25 years' direct imprisonment.
[4] The facts underpinning the convictions briefly stated are the following. The complainant, who was 19 years, old at the time, and her boyfriend "John" drove in a bakkie from Knysna to Delft, Cape Town. They arrived at John's house in Delft at approximately 18h00. Whilst there, the complainant received a message that her cousin, who also stays in Delft, was looking for her. She and John then decided to go and visit her cousin.
[5] At some stage during the night at her cousin's house, John decided to go and sleep in the back of the bakkie which was parked in the back of the yard. The bakkie had a canopy on. The complainant later joined John in the back of the bakkie. Later that same night they were woken up by men who were standing around the bakkie. The complainant testified about the attempted rape, how she was later raped and how she and John were robbed.

[8] John's evidence does not take the rape and attempted rape charges any further as he did not witness the rape. He was taken away to another place when the rape of the complainant occurred.
[9] The Appellant's evidence also does not take the matter any further. Although the Appellant admits being on the scene, he denies any wrongdoing. He in fact testifies that everything that he is blamed for was done by Accused 3, who died before the trial began.
[10] The trial court found that the complainant and her boyfriend, John, were credible and honest witnesses and accepted their version of events. This finding is not attacked on appeal by the Appellant.

[12] At page 3 of the Hess judgement the court held the followings

conviction of first appellant on the charge of rape should be set aside.
This we are empowered to do, notwithstanding the absence of an appeal against conviction, by exercising our powers of special review in terms of Section 304(4) of the Criminal Procedure Act."
[13] Regrettably, I am constrained for the reasons stated herein to disagree with my learned Brothers view that where a person was not formally charged as an accomplice as in casu and the elements of accomplice liability have been overwhelmingly established, a verdict of guilty in the same form of the perpetrator cannot follow.

"Perpetrators and accomplices are all participants in a crime. A perpetrator Is one who performs the act that constitutes the particular crime with the intention required by law for that crime. Where two or more persons together perpetrate a crime, they are termed coperpetrators. An accomplice is neither a perpetrator nor a co-perpetrator, in that the acts performed by him do not constitute a component of the
actus reus of the particular crime. He is one that consciously associates himself with the commission of the crime by aiding or assisting the perpetrator, which generally involves affording him or her opportunity, means or information in respect of the commission of the crime.. The criminal liability of an accomplice is therefore accessory in nature. *

[20] The authors in Hiemstra's Criminal Procedure have adopted a different view. At pg 22-27, the authors state the following:

'All persons who knowingly aid and assist in the commission of a crime
are punishable just as if they had committed it"

[24] The long overdue new Sexual offences and Related Matters Amendment Act 32 of 2007 came into operation on 16 December 2007. The new Act has finally done away with the common law definition of rape that for so long presented these challenging legal conundrums.

[26] The offences the Appellant and his co-accused committed are very serious. They acted in a gang format when they attacked the complainant and her boyfriend. These crimes falls within the ambit of the minimum sentence legislation, Act 105 of 1997. Rape is a very serious offence and constitutes a humiliating and brutal invasion on the person of the victim. Society demands that Courts protect the dignity of vulnerable women by imposing appropriate sentences.
[27] Taking into account ail the relevant factors pertaining to sentence, the trial court, in my view, erred in imposing the same sentence on the Appellant as accused 6, who was much older and the main perpetrator in the rape count The seriousness of the offences and the interest of society were clearly overemphasized at the expense of the Appellant's personal circumstances. The trial court manifestly failed to properly consider the fact that the Appellant was an accomplice in the commission of the offence and in custody for nearly three years, The imposed sentence of 25 years imprisonment does induce a sense of shock if one considers that the Appellant was only 17 years old when these crimes were committed. For these reasons the imposed sentence must be set aside and considered afresh.
[28] In considering all the factors, pertaining to sentence, I am of the view that substantial and compelling circumstances do exist that justify the imposition of a lesser sentence and that a more just and equitable sentence should be an effective term of 12 years imprisonment. It follows that the appeal against sentence must succeed.
[29] In the result the following order is made:-
(a) The appeal against conviction is dismissed.
(b) The appeal against sentence succeeds.
(c) The term of 25 years imprisonment is set aside and substituted with the following:-
(i) Counts 1 and 2 are taken together for the purpose of sentence and a term of 10 years' imprisonment is imposed.
(ii) Counts 3 - 5 are taken together for the purpose of sentence and a term of 10 years' imprisonment is imposed.

(d) In the result the effective term of imprisonment is 12 years. The sentence is backdated to 21 September 2001.

LE GRANGE, J

I agree.

SABA, AJ