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　　IN

　　THE HIGH COURT OF SOUTH AFRICA

　　(WESTERN

　　CAPE DIVISION, CAPE TOWN)

　　 

　　Case

　　no.: A10/23

　　In

　　the matter between:

　　 

　　OWEN

　　DAVIDS                                                                                            

　　Appellant

　　 

　　and

　　 

　　THE

　　STATE                                                                                                 

　　 Respondent

　　 

　　Coram:

　　V C Saldanha J et P S van Zyl AJ

　　Heard:

　　10 March 2023

　　Delivered:

　　10 March 2023

　　 

　　JUDGMENT

　　 

　　SALDANHA

　　J:

　　 

　　[1]         

　　This appeal arises in the context of a domestic relationship.  The

　　appellant was convicted in the Paarl Regional Court on a count of

　　rape of Ms S.C., a thirty-one year old woman. He was sentenced

　　to a

　　period of fifteen years’ imprisonment. Leave to appeal against

　　both the conviction and sentence was refused by the Regional

　　Court

　　but granted on petition to this division of the High Court.

　　 

　　[2]         

　　The charge arises out of an incident on 25 March 2021 when, at No.

　　[…]

　　K[...] Town, Paarl East, the appellant unlawfully and

　　intentionally sexually penetrated the vagina of the complainant with

　　his

　　penis without her consent. The charge sheet recorded that the

　　provisions of section 51 of Schedule 2 of the Criminal Law Amendment

　　Act 105 of 1997 (“the minimum sentence legislation”) were

　　applicable.

　　 

　　[3]         

　　The appellant was legally represented throughout the trial. He

　　pleaded

　　not guilty to the charge and elected not to disclose the

　　basis of his defence at the outset. The State called the evidence of

　　the

　　complainant and a police officer, Captain Hannelie Yolanda Smith

　　of the Paarl East police station, to whom the complainant had made

　　the first report about the incident. A report on the medico-legal

　　examination conducted on the complainant by Dr Rebecca Cronje,

　　a

　　registered medical practitioner, on 25 March 2021 at approximately

　　21h55 at the Paarl Hospital, was handed in with the consent

　　of the

　　defence. The appellant testified in his own defence and called no

　　other witnesses.

　　 

　　[4]         

　　The appellant and the complainant had previously been in a

　　relationship

　　for a period of nine years, in the course of which two

　　minor children were born.  At the time of the trial the children

　　were

　　respectively three and five years old. The complainant had four

　　other children from other relationships.

　　 

　　[5]         

　　The complainant claimed that, at the time of the incident, she had no

　　longer been in an intimate sexual relationship with the appellant

　　because of his repeated physical and emotional abuse of her, albeit

　　that they from time to time shared the same residence with the

　　children. The appellant, however, denied that their intimate

　　relationship

　　had been terminated by the complainant. He further

　　denied that he had ever abused her and moreover denied that, on the

　　day of the

　　incident, he had had sexual intercourse with her.

　　 

　　[6]         

　　In his grounds of appeal, the appellant contended as regards the

　　conviction

　　that the Regional Court misdirected itself by, amongst

　　others, accepting the version of the complainant, a single witness,

　　against

　　that of the appellant.  He contended that the two

　　versions were mutually destructive and that he was entitled to the

　　benefit

　　of a reasonable doubt. The appellant also submitted that the

　　Regional Court had failed to exercise the necessary caution in

　　considering

　　the evidence of the complainant, as a single witness. He

　　moreover contended that the evidence of the medical doctor as

　　reflected

　　in the J88 form contradicted that of the complainant in

　　material respects. The appellant also argued that the Regional Court

　　had

　　failed in its duty by not calling other witnesses.

　　 

　　[7]         

　　In respect of the sentence imposed, the appellant contended that the

　　Regional

　　Court had failed to inform him of the applicable provisions

　　of the minimum sentence legislation when he pleaded. He also

　　contended

　　that the magistrate failed properly to take into account

　　his personal circumstances and that he was a good candidate for

　　rehabilitation.

　　He argued that the Regional Court had over-emphasised

　　the prevalence of the offence.  He submitted that the sentence

　　was disproportionate

　　and induced a sense of shock.

　　 

　　[8]         

　　In its judgment on conviction, the Regional Court comprehensively set

　　out the evidence of all of the witnesses. For the purposes of this

　　judgment the evidence is no more than briefly stated. The complainant

　　testified that, on the morning of the incident, at her residence and

　　at approximately 09h00, she was still asleep and lying on

　　her side

　　when she felt someone inserting his penis into her vagina from

　　behind. She claimed that she was alerted to the penetration

　　because

　　the person held her very tight from behind and had pressed his hand

　　against a large cyst on her arm. She identified the

　　person as the

　　appellant with whom she had previously been in a relationship. She

　　explained that she had terminated the relationship

　　with him as a

　　result of his physical and emotional abuse of her over a lengthy

　　period. They nonetheless shared her residence. She

　　recalled that he

　　had slept on the couch in the living room the night before. When she

　　was awakened she felt that the appellant

　　had inserted his penis into

　　her vagina. She immediately said to him “no, Owen you know I

　　do not want to sleep with you, because you are abusing me every day”.

　　He ignored her and carried on. She cried. When he ejaculated into

　　her, he tightened his hold around her. He then got up

　　and left.

　　 

　　[9]         

　　The complainant testified that the cyst on her arm pained and she

　　cried

　　herself to sleep again. She also described that her panties had

　　been drawn down to her knees, presumably by the appellant, as she

　　recalled that when she had gone to sleep the night before she had

　　pulled them up to her waist. She said that she had slept right

　　through the night as she was tired. She explained that, as a result

　　of the abuse that she had suffered at the hands of the appellant,

　　she

　　had developed an extreme hatred towards him and that her life had

　　been reduced to much unhappiness and tears. When she told

　　him that

　　she did not want to continue with their relationship he refused to

　　accept it and, despite the house in which she lived

　　being divided to

　　enable him to live in his own space, he regularly occupied hers.

　　 

　　[10]      

　　Later that afternoon the complainant reported the sexual assault at

　　the Paarl police station

　　to an officer whose details she was not able

　　to recall. She also described an incident that had taken place at the

　　house between

　　her and the appellant that very afternoon, and that led

　　to her threatening him with a knife. This had occurred prior to her

　　going

　　to the police station.  When she eventually got out of bed

　　that afternoon she found the appellant and a friend of his, a Mr

　　Mapoli, smoking tik in her house. She remonstrated with him for doing

　　so. In response he stabbed her with a small screwdriver on

　　her upper

　　thigh and threw a brick at her which also struck her on her upper

　　right thigh. She testified that there was no more than

　　a scratch mark

　　on her thigh and the area struck by the brick turned blue. When she

　　confronted the appellant about his use of tik

　　in her house he

　　rebuffed her and told her that she could not tell him what to do.

　　 

　　[11]      

　　Later, consumed with anger and hatred for the appellant for what he

　　had done, the complainant

　　took a knife and went in search of him to

　　stab him. She found him at Mr Mapoli’s place. She said that she

　　could not get herself

　　to stab the appellant because of the presence

　　of their young son. She left but, before doing so, the appellant

　　threatened that

　　he would stab her in her “mother’s

　　thing”. She went home and wrapped the knife in a jersey. 

　　Then she went to the police station and reported the rape incident

　　to

　　the police. She claimed to have handed the knife over to the police

　　officer who attended to her. She waited for some time at

　　the police

　　station before she was taken to the hospital where she was examined.

　　She was thereafter taken by the police to her house

　　where the

　　appellant was arrested.

　　 

　　[12]      

　　She testified that the appellant had on a previous occasion also had

　　sexual intercourse

　　with her without her consent.  As a result of

　　the repeated assaults and abuse, together with the sexual assault on

　　her that

　　morning, she had reached her tipping point. Her desperation

　　caused her to resort to taking a knife in anger to use on the

　　appellant,

　　and then reporting the incident of that morning to the

　　police.

　　 

　　[13]      

　　 In cross-examination it was put to the complainant that she had

　　been in the company

　　of the appellant’s sister and the latter’s

　　boyfriend when she confronted the appellant and Mr Mapoli about

　　smoking

　　on her premises. The appellant claimed that the complainant

　　had wanted to smoke tik with them but he refused as she had already

　　smoked tik earlier with his sister. The complainant emphatically

　　denied this. She explained that the appellant’s sister,

　　who was

　　present together with her boyfriend, wanted to intervene but that the

　　appellant instructed them to leave the scene and

　　not to interfere.

　　 

　　[14]      

　　The appellant thereafter stabbed her with the screwdriver and threw

　　the brick at her. The

　　complainant admitted that she was a user of

　　dagga but had stopped using tik some time ago. She claimed that she

　　was in the process

　　of rehabilitating from the use of tik as some of

　　her children had been removed from her by social workers attached to

　　Badisa. Those

　　children had been placed in foster care. She said that

　　while the injuries to her upper thigh would have been visible she had

　　not

　　pointed them out to the doctor during the medical examination.

　　She assumed that the doctor would have seen them. She also claimed

　　to

　　have been infected by the appellant with a sexually transmitted

　　disease for which she required medical treatment. She was adamant

　　under cross-examination that she no longer used tik but continued her

　　use of dagga. She explained that her mind had been preoccupied

　　for

　　some time by the appellant’s abuse of her and her

　　ever-increasing hatred of him, but she did not want to have him

　　imprisoned

　　as he was the father of two of her children.

　　 

　　[15]      

　　It was put to the complainant during cross-examination that, while

　　the appellant and Mr

　　Mapoli had been smoking, a memory card went

　　missing from the appellant’s cellular phone. When the appellant

　　asked her about

　　it later that day she informed him that it could have

　　been removed by Mr Mapoli while he was still there. The appellant

　　claimed

　　that because the complainant would not accompany him to

　　confront Mr Mapoli he threw a small screwdriver at her, but that it

　　had

　　completely missed her.  While she admitted having told him

　　that it could have been Mr Mapoli who took his memory card she denied

　　that the appellant had simply thrown a screwdriver at her. 

　　 

　　[16]      

　　The evidence of Captain Smith related to the report made by the

　　complainant to her about

　　the appellant’s sexual assault on her.

　　Captain Smith also corrected her initial statement to reflect that

　　the appellant was

　　alleged to have sexually penetrated the

　　complainant’s vagina and not her anus as initially incorrectly

　　recorded. Captain

　　Smith testified that the complainant had not handed

　　a knife to her.

　　 

　　[17]      

　　The medical examination report (the J88) by Dr Cronje recorded that

　　the complainant had

　　claimed that she had been forced to have vaginal

　　intercourse with a male on 25 March 2021. In her clinical

　　observations of the

　　complainant, Dr Cronje recorded no injuries.  In

　　particular, none were observed in the complainant’s genital

　　area other

　　than noting a “creamy discharge? “semen”.

　　In her conclusion Dr Cronje noted that, although there were no

　　injuries, that in itself did not exclude “a sexual offence.”

　　 

　　[18]      

　　In his testimony, the appellant denied having had sexual intercourse

　　with the complainant

　　on 25 March 2021. He admitted, though, that she

　　had confronted him that day while he and Mr Mapoli had been smoking

　　tik on her

　　premises. He claimed that she had wanted to smoke with

　　them but he flatly refused as he claimed that she had earlier smoked

　　tik

　　with his sister. After Mr Mapoli left, the appellant noticed that

　　the memory card of his cellular phone was missing. He confronted

　　the

　　complainant about it. She informed him that Mr Mapoli had taken the

　　card. He claimed that he wanted her to accompany him to

　　confront Mr

　　Mapoli. She refused and he thereupon threw a small screwdriver at

　　her, which missed.

　　 

　　[19]      

　　The appellant then went to Mr Mapoli to confront him about the memory

　　card. Mr Mapoli had

　　in fact taken the card and upon being confronted,

　　returned it to the appellant. The appellant claimed that, in a

　　passageway near

　　Mr Mapoli`s residence, the complainant approached him

　　with a knife and threatened him as follows: “Jy ek steek jou

　　nou”. He immediately retreated a few paces. She turned

　　around and left. He claimed that he returned home thereafter to

　　apologise

　　to the complainant for having earlier thrown the

　　screwdriver at her. She was not present and he was informed by his

　　son that she

　　had gone to the police station.

　　 

　　[20]      

　　In cross-examination the appellant claimed that there were no

　　problems in his relationship

　　with the complainant and that she had no

　　reason to be angry with him. He claimed that on the day in question

　　she got upset with

　　him because he refused to allow her to join him

　　and Mr Mapoli in the smoking of tik. When she later threatened him

　　with a knife

　　near Mr Mapoli`s place it was because he had thrown the

　　screwdriver at her. He sought to explain that her conduct was the

　　result

　　of her use of drugs and that she was prone to losing her

　　temper at him for no good reason. He added that she had previously

　　stabbed

　　him.

　　 

　　[21]      

　　The appellant claimed that the reason why the complainant resorted to

　　the laying of a false

　　charge of rape against him was to “spite”

　　him. She allegedly said as much to him while he was in the police van

　　after his arrest. Later in his cross-examination he

　　added that she

　　had in fact said to him some time before his arrest that she would

　　lay a false charge of rape against him because,

　　if she simply accused

　　him of an assault, the police would not respond and arrest him. He

　　claimed that he had informed his attorney

　　of these threats despite

　　the complainant not having been confronted her about them during her

　　cross-examination. He also claimed

　　that he was a member of the 27s

　　gang and that the surrounding community did not want him in the area

　　because of his use of drugs.

　　 

　　[22]      

　　In considering the evidence, the Regional Court was particularly

　　mindful that it was dealing

　　with the evidence of a single witness and

　　the application of the cautionary rule in the evaluation of the

　　evidence of the complainant.

　　The Regional Court was nonetheless

　　satisfied that the complainant was both a credible and trustworthy

　　witness, that her first report

　　of the incident to the police officer

　　was consistent with her version in court, and that she had withstood

　　a thorough cross-examination

　　and made concessions when confronted

　　about her lifestyle. In particular, she admitted to having used drugs

　　which led to her children

　　being taken into foster care. She also

　　admitted to her ongoing use of dagga. She explained to the Court the

　　anguish she experienced

　　in her relationship with the appellant and

　　the hatred she had increasingly felt for him. Despite that, she had

　　not previously reported

　　the appellant to the police as she did not

　　want him to go to prison because he was the father of two of her

　　children.

　　 

　　[23]      

　　The Regional Court was also mindful of the fact that Dr Cronje had

　　not noted any visible

　　injuries on the right thigh of the complainant

　　in her clinical findings, or any other injuries. The Court noted,

　　however, that

　　the complainant had not specifically drawn such

　　injuries to the doctor’s attention, as she said that that was

　　not why she

　　had gone for the medical examination. Dr Cronje did point

　　out that the lack of any visible injuries did not indicate an

　　inconsistency

　　with sexual penetration. I should point out, though,

　　that Courts have repeatedly stated that it is preferable for the

　　medical practitioners

　　who conduct and complete the medical reports to

　　be called to testify in matters involving the alleged sexual assault

　　of women and

　　children.  Dr Cronje’s oral evidence would no

　　doubt have been of assistance to the Court.

　　 

　　[24]      

　　The appellant, on the other hand, made a particularly poor impression

　　on the Regional Court.

　　Although there were important parts of his

　　evidence that supported the complainant's version, such as her

　　threatening him with

　　a knife, the missing memory card and Mr Mapoli`s

　　role in it, as well as the appellant’s possession of the

　　screwdriver, the

　　Regional Court – correctly, in my view -

　　rejected the appellant’s denial of having sexually violated the

　　complainant

　　on the day. The Regional Court found that his version was

　　highly improbable. It made no sense that, despite his claim that they

　　had for many years maintained a loving relationship, the complainant

　　on 25 March 2021 for no good reason other than the appellant

　　throwing

　　a screwdriver at her (which missed), would lay a charge of rape

　　against him. He subsequently changed that reason to one

　　of “spite”.

　　He claimed that the complainant would, likewise, for no good reason

　　confront him with a knife and threaten to stab him.

　　 

　　[25]      

　　The magistrate found that the appellant readily adapted his version

　　when under pressure

　　in cross-examination. That exposed him as, as the

　　magistrate put it, a “dismal liar”. She rejected his

　　version as not

　　being reasonably possibly true and found that the

　　State had proved its case beyond reasonable doubt.

　　 

　　[26]      

　　It was apparent from the evidence of the complainant, that she had

　　been in an abusive relationship

　　with the appellant for many years.

　　The appellant’s denial of that fact was correctly rejected by

　　the Regional Court. That

　　notwithstanding, and without detracting from

　　the strength of the complainant’s evidence on its own, the

　　State should in my

　　view have obtained a psycho-social report on the

　　circumstances of the complainant, which report would have explained

　　what is often

　　referred to as a complex condition known as “battered

　　wife syndrome.” It appeared from the evidence that the

　　complainant

　　found herself trapped in a relationship of abuse with the

　　appellant. As the mother of his two children, her own dependence on

　　dagga

　　and the intervention of the social workers at Badisa in respect

　　of her children, she was particularly vulnerable to continued abuse

　　and manipulation by the appellant.

　　 

　　[27]      

　　Nonetheless, the Regional Court correctly found the complainant to be

　　both a credible and

　　reliable witness. She withstood a thorough and at

　　times tendentious cross-examination on matters not related to the

　　charge. Her

　　evidence was particularly clear and persuasive in

　　depicting the history of the abuse in the relationship between

　　herself and the

　　appellant. She clearly reached the end of her tether

　　on the day of the incident. She was stripped of her dignity by the

　　unlawful

　　penetration of her vagina by the appellant while she was

　　asleep, and the appellant’s further audacious assault on her

　　with

　　a screwdriver and a brick. This culminated in her resorting to

　　taking a knife to stab him. To her credit she had changed her mind

　　just before doing so because of the presence of her minor child. She

　　thereafter immediately went to the police station to report

　　the rape.

　　 

　　[28]      

　　The fact that the police officer, Captain Smith, did not confirm the

　　complainant’s

　　evidence that she had handed in the knife was of

　　no moment as her evidence prior thereto as to the threat with the

　　knife on the

　　appellant was confirmed by him in his own version.  The

　　Regional Court likewise and, in my view, correctly, rejected the

　　appellant’s

　　version as not reasonably possibly true. He was a

　　typical opportunistic witness who, when confronted with the

　　inconsistences in

　　his version, was quite happy to colour in his

　　evidence, especially when it came to why the complainant would have

　　laid a charge

　　against him. His version of her having said to him

　　either when he was in the police van or prior thereto that she would

　　lay a false

　　charge of rape against him out of spite was nothing more

　　than a brazen afterthought, as such an important claim should have

　　been

　　put to the complainant during cross-examination when she

　　testified. This did not occur. Likewise, her alleged previous

　　outbursts

　　against him with threats and a stabbing were not put to the

　　complainant. It is evident from the record that the appellant was a

　　dismal witness, and his testimony and demeanour were indicative of

　　his abusive relationship of the complainant. He was quite happy

　　to

　　cast her in a negative light with reference to her previous use of

　　drugs and the fact that she had lost her children as a result

　　thereof.

　　 

　　[29]      

　　There is in my view no merit in the criticism by the appellant of the

　　Regional Court in

　　not having called any further witnesses, such as

　　the appellant’s sister or her partner. Such evidence would not

　　have been

　　of any assistance to the Court’s evaluation of the

　　complainant’s version of the sexual violation that had occurred

　　that morning.  Neither would it have been of any assistance to

　　the appellant in his version, for the same reason. The appellant

　　was

　　moreover at liberty to call his own sister as a witness if he had

　　really believed that she could have supported his version

　　and if

　　there was any truth to it. I am satisfied that the Regional Court had

　　not committed any irregularity in the proceedings

　　or in the

　　evaluation of the evidence.  The Court correctly found that the

　　State had proved the charge against the appellant

　　beyond reasonable

　　doubt. I propose to confirm the conviction of rape.

　　 

　　[30]      

　　The appellant’s contention that the magistrate had failed to

　　point out the provisions

　　of the minimum sentence legislation at the

　　time of the plea is likewise without any merit. The charge as read

　　out into the record

　　specifically referred to the relevant provisions

　　of the minimum sentence legislation. Moreover, the appellant was

　　legally represented

　　at the stage at which he had pleaded, and

　　throughout the trial.

　　 

　　[31]      

　　It also appears from the record that prior to the appellant’s

　　conviction the magistrate

　　had pointed out to counsel for both the

　　State and the appellant that, if she convicted the appellant of the

　　rape and if no substantial

　　and compelling circumstances were proved,

　　they should be prepared to address the Court on why it should not

　　exercise its discretion

　　in imposing a further period of five years on

　　the prescribed minimum of ten years’ sentence on the charge.

　　Both counsel for

　　the appellant and State in fact extensively

　　addressed the court on that issue, replete with references to case

　　law.

　　 

　　[32]      

　　In sentence, the magistrate was mindful of the triad of factors to be

　　taken into account,

　　such as the personal circumstances of the

　　appellant, the nature and seriousness of the offence, and the

　　interest of society. The

　　magistrate was also alert to the objectives

　　to be achieved by sentencing, such as rehabilitation, retribution,

　　prevention and deterrence,

　　and that the Court should attempt to

　　strike a balance in achieving an appropriate sentence. The Regional

　　Court was further mindful

　　of the element of mercy which it would be

　　required to display in the totality of the circumstances of the

　　matter.

　　 

　　[33]      

　　The appellant, notwithstanding facing a total sentence of 15 years’

　　imprisonment,

　　elected not to lead any evidence in mitigation of

　　sentence. No probation officer’s report was requested by the

　　defence. His

　　legal representative simply addressed the Court, having

　　placed his personal circumstances on record. At the time of sentence

　　the

　　appellant was 26 years old and, although not married, had been in

　　a long-term relationship with the complainant, of which relationship

　　two minor children were born. The appellant had progressed in school

　　to Grade 9. At the time of his arrest he was employed as a

　　carpenter

　　and earned R400 per week that he claimed was used in the maintenance

　　of his family. The appellant, however, was not a

　　first offender. He

　　had two previous convictions:  in 2012 and 2018 respectively he

　　had been convicted of offences of which

　　violence was an element. On a

　　count of assault with intent to do grievous bodily harm he was

　　sentenced to a period of six months’

　　imprisonment which was

　　wholly suspended. Likewise, on the second conviction of assault, also

　　with the intent to do grievous bodily

　　harm, he was given the benefit

　　of a sentence in terms of of the

　　, to do community service for a period of 36 months.

　　 

　　[34]      

　　The state as well as the defence failed to obtain a pre-sentence

　　report on the impact of

　　the sexual assault on the complainant. Our

　　courts have on previous occasions emphasised the importance of such

　　reports in matters

　　of sexual violence. I do so again. Needless to

　　say, the sexual violence suffered by the complainant which was

　　compounded by the

　　abusive relationship she had suffered at the hands

　　of the appellant would have had and will continue to have a long-term

　　and devastating

　　impact on her. The case law is legion on this issue.

　　 

　　[35]      

　　In respect of the seriousness of the offence, the Regional Court

　　observed that the complainant

　　was slightly built and remained in a

　　distraught state throughout her testimony in court. The cyst which

　　she claimed was also as

　　a result of the conduct of the appellant was

　　visible right through her clothes and on what appeared to be her

　　thin, tiny arm. She

　　had explained to the Court how her body had been

　　affected by an infection which she claimed to have contracted as a

　　result of the

　　sexual violation of her by the appellant.

　　 

　　[36]      

　　The Regional Court appropriately reflected on the prevalence of

　　domestic violence and the

　　rampant abuse of partners at the hands of

　　the other. The Court was appropriately mindful of the interests of

　　society that required

　　of Courts to deal firmly yet fairly with

　　perpetrators of such offences, in particular sexual violence. The

　　Regional Court also

　　commented on the arrogance that the appellant

　　visibly displayed during the sentencing proceedings as indicative of

　　his conduct

　　throughout the trial in his gratuitous attempts at

　　belittling the complainant. He accused her of being a drug addict who

　　had lost

　　her children to foster care, and who was temperamental and

　　prone to assault him without any reason.

　　 

　　[37]      

　　In imposing the minimum sentence the Regional Court was guided by the

　　authority of several

　　decisions, in particular the oft-quoted decision

　　of S v Malgas (SCA) where Courts were

　　cautioned against departing from the prescribed sentences for no more

　　than flimsy and fanciful reasons.

　　On the record in the present matter

　　it is apparent that there were simply no substantial and compelling

　　circumstances to have enabled

　　the Regional Court to have deviated

　　from the prescribed minimum sentence.

　　 

　　[38]      

　　It is so that the appellant had served eight months awaiting trial.

　　Nonetheless, in my

　　view, the exercise by the Regional Court of its

　　discretion to impose a further period of 5 years in addition to that

　　of the prescribed

　　minimum of 10 years was wholly appropriate. There

　　is no real basis for the appellant to complain that he will not be

　　able to rehabilitate

　　himself while in prison. In my view, given the

　　circumstances of the offence and the brazen conduct of the appellant,

　　he should

　　count himself lucky to have a sentence of only 15 years’

　　imprisonment imposed on him.

　　 

　　[39]      

　　This Court notes with concern that no evidence was led about whether

　　the complainant had

　　received any trauma counselling for the ordeal

　　she had suffered at the hands of appellant. The Office of the

　　Director of Public

　　Prosecutions is directed to assist in ensuring

　　that the complainant receives the necessary assessment and

　　counselling as needed.

　　Counsel for the state, Ms Uys, at the hearing

　　of the appeal, kindly undertook to do so. The Court is indebted to

　　her. 

　　 

　　[40]      

　　In conclusion, there having been no misdirection by the Regional

　　Court in having imposed

　　the sentence of 15 years’ imprisonment

　　on the appellant, I propose to confirm it.

　　 

　　[41]      

　　It is ordered that:

　　 

　　i.The appeal on

　　conviction is dismissed.

　　 

　　ii.The appeal on

　　sentence is likewise dismissed and the sentence of 15 years’

　　imprisonment is confirmed.

　　 

　　 

　　V

　　C SALDANHA 

　　JUDGE

　　OF THE HIGH COURT

　　I

　　agree.

　　P

　　S VAN ZYL

　　ACTING

　　JUDGE OF THE HIGH COURT