COMPENSATORY ORDER FOR RAPE

Seedat v S [2015] 3 All SA 93 (GP)
Criminal law – Rape – Appeal against conviction and sentence – Evidence establishing appellant’s guilt on charge of rape – Circumstances of case justifying making of compensatory order.
[2] Criminal procedure – Evidence – Adducing of further evidence – Criminal Procedure Act 51 of 1977 – Section 309B – Applicant must satisfy the court on cogent reasons why reopening should be allowed and why evidence sought to be introduced after conviction, could not be adduced during the trial.

The 63-year old appellant was convicted of rape and was sentenced to 7 years’ imprisonment. Although he was granted leave to appeal against the conviction and sentence, an application for leave to adduce further evidence in terms of section 309B of the Criminal Procedure Act 51 of 1977 was refused. Leave to appeal against the said refusal was subsequently granted on petition.
The evidence in respect of which leave was sought to be lead was that of two doctors, expressing opinions about the report of the doctor who examined the complainant.
Held – Although the leading of evidence after conviction and on appeal is permissible, it is an indulgence granted on application under exceptional circumstances. The applicant for such relief must satisfy the court on cogent reasons why reopening should be allowed. An explanation would be required as to why the evidence sought to be introduced after conviction, could not be adduced during the trial. The evidence sought to be introduced at such a late stage must be relevant and have the potential of altering the verdict arrived at by the trial court. In this case, the doctor’s opinions sought to be adduced as new evidence were speculative and of no assistance. The Court therefore held that there would be no purpose served were leave to lead further evidence to be granted. The appeal against the magistrate’s refusal to grant leave to lead further evidence was dismissed.
The Court found that although the complainant was a single witness, her testimony was corroborated by other evidence. The State had thus proved that rape was committed, and the trial court’s finding could not be disturbed by this Court.
Based on the evidence, the Court found that the appellant had committed two separate acts of rape, and should have been convicted of repeat rape in terms of section 51(1) of Act 105 of 1997. However, as the charge covered only one of the acts of penetration, the Court could not convict the appellant of the more serious offence of repeat rape. The conviction, as it stood, was confirmed.
In his appeal against sentence, the appellant contended that the trial court erred in not resorting to the alternative mechanism of restorative justice, and not ordering the appellant to compensate the complainant, in accordance with her request. In determining what an appropriate sentence should be, the court will take into account, inter alia, the gravity of the offence, the interest of society, the retributive aspects, rehabilitation, deterrence, and the interest of the victim, in cases such as in casu, and the interest and personal circumstances of the offender. In the circumstances of the present matter, an award of compensation was appropriate. The appeal was upheld and the sentence of 7 years’ imprisonment was set aside and replaced with an order directing the appellant to pay the complainant R100 000.

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