S v SEEDAT 2015 (2) SACR 612 (GP)
Rape — Sentence — Restorative justice — When applicable — Complainant not seeking imprisonment of accused, rather wanted compensation — Accused willing to compensate — Magistrate erring in not considering option of imposing sentence in terms of s 297 of Criminal Procedure Act 51 of 1977 — Sentence of imprisonment set aside on appeal and replaced with order that sentence postponed for accused to compensate complainant.
Appeal — Application for hearing of further evidence — On face of it part of evidence sought to be led was perjured — Evidence in any event speculative and would not have helped to determine whether state had proven its case or not — Application dismissed.

The appellant was a 63-year-old businessman who was convicted in a magistrates’ court of rape and was sentenced to seven years’ imprisonment. He appealed against the conviction and sentence and also applied for leave to adduce further evidence in terms of s 309B of the Criminal Procedure Act 51 of 1977. The complainant testified at the trial that the appellant delivered a bedside lamp to her residence and after he plugged it in and showed her that it worked, he grabbed her, threw her against the dressing table, pulled off her trousers and panties and then threw her down and penetrated her anally. He then turned her around and had frontal vaginal intercourse with her. The doctor who completed the J88 did not testify and F the form was handed in by consent. The form indicated that there were abrasions to the vagina and inflammation of the anus and there was evidence of dry penetration of her vagina. The further evidence sought to be led by the appellant was that of a doctor who stated in an affidavit that it was improbable that the 57-year-old complainant would not have had bruising on other parts of her body, given what had happened. This affidavit was G confirmed by another doctor but it appeared that the confirmatory affidavit, which stated specifically that the deponent had seen the first affidavit, was actually deposed to and commissioned before the supposedly first affidavit. As regards sentence, it was contended on behalf of the appellant that the magistrate had erred in not considering a compensatory sentence, in the circumstances where the complainant stated that she did not wish the appellant to go to jail and that she would be satisfied if he bought her a H Toyota motor vehicle and gave her compensation of R240 000, which the appellant was willing to do.
Held, as to the application for leave to lead further evidence that the second doctor who made the confirmatory affidavit could not have read the affidavit of the other doctor before it even came into existence, and therefore the conclusion was that he had not told the truth but committed perjury in I alleging that he had read it. His confirmatory affidavit could therefore not be of any assistance to the court, were it to be led as further evidence.
Held, further, that the evidence of the doctors proposed to be led could not explain away the clinical findings regarding abrasions to the vagina and the inflammation of the anus, and the doctor did not challenge the finding that J there had been anal penetration. The conclusions in these affidavits were merely speculative and would not contribute towards the resolution of the A important question whether the state had proven its case against the appellant beyond reasonable doubt. There would therefore be no purpose in granting leave to lead further evidence.
Held, further, that, on the evidence, the appellant had committed two separate acts of rape and should have been convicted of repeat rape in terms of B s 51(1) of the Criminal Law Amendment Act 105 of 1997. In the circumstances where the state had not applied to have the charge amended and the magistrate, after having heard evidence, had not deemed it necessary to address the issue of repeat penetration and neither during the appeal had the parties been invited to address the court on this aspect, it would be a travesty of justice at such a belated stage to convict the appellant of repeat rape.

Held, as to sentence, that the magistrate had not considered applying the provisions of s 297 of the Criminal Procedure Act 51 of 1977 and postponed the sentence for a period on condition that the appellant pay compensation. As the minimum-sentencing provisions of Act 105 of 1997 were not applicable it was open to the magistrate to postpone the imposition of sentence for a period and make a restorative justice award. In the circumstances it was appropriate that the appellant be ordered to compensate the complainant; however, the amount suggested by her was excessive and there was nothing to show how the amount had been arrived at. In the circumstances an award of R100 000 would be appropriate.