In the high court of south africa



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IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)
Case No: K/S 38/10

Heard: 01-28/02/2011

01-22/03/2011; 03/05/2011

Delivered: 10/05/2011

In the matter between:



THE STATE


v

FRANS OLIPHANT Accused

JUDGMENT ON SENTENCE



KGOMO JP


  1. The accused, Mr Oliphant, a Galeshewe, Kimberley, man of 38 years, was on 03 May 2011 convicted on eight of the ten charges he faced. These are: Assault common, assault with intent to do grievous bodily harm, rape, theft, arson, attempted murder, kidnapping and attempted assault with intent to do grievous bodily harm.




  1. In aggration of sentence the state called Ms D, who still testified in camera. Sobbing throughout her testimony, she described how her intolerable treatment at the hand of the accused has edged deep psychological scars in her life. The thought that the accused on more than one occasion threatened to kill her and take his own life and that she escaped being charred in an inferno in her residence causes her sleepless nights. Her sleeping pattern has therefore been adversely affected. During the trial she testified that the accused reminded her of the tragic occurrence when her father killed her mother. This, in my view, instilled in Ms D an abiding traumatic memory.




  1. Ms D testified that her love and interactive relationship with men has suffered because she is less trusting of them. The bad experience has even transcended to family and friends. I must observe here that a disconcerting trend has developed whereby the culprits that are near and dear to victims take advantage of them and in a perverse irony afterwards try to invoke their very close relationship as an ameliorating factor; for example lovers or husband and wife. This cannot be.




  1. Ms D has explained that she has suffered great financial loss as a result of the destruction of her property and the restoration of the burnt flat that she leased. The combined initial damage was quantified at more than R14 000-00 but this does not take account of the much higher replacement cost. Ms D is a low income earner. She says having expended money on taking care of the aforementioned damages she was unable to pay her other debts, which has resulted in sullying her creditworthiness.




  1. Rehanna Moshoeshoe’s, the 15 year old missing girl’s, father made a plaintive plea to the accused. He spoke on behalf of Rehanna’s mother (his ex-wife), the extended family, their friends, the various support groups since Rehanna’s disappearances and the broader Kimberley/Galeshewe society. Tell us, he says, where Rehanna is. Tell us what you did to her. Give us the sordid details; distasteful as that may be, because if you have killed her that knowledge is preferable to the unending ignorance of not knowing her whereabouts because we can reconcile ourselves with her death and get closure.




  1. Mr Moshoeshoe wore an anguished and distressed expression. The courtroom, the biggest, was full to its rafters. Mr Moshoeshoe was not swept up by emotions nor did he play to the gallery. He showed no anger and bitterniss. He was polite and addressed the accused as “my brother, Mr Oliphant.” He never tried to belittle the accused. Where there may have been a hint of it, I don’t believe there was, it would have been entirely unintended. I was as vigilant as I could to ensure the accused’s dignity was not impinged upon; mindful also of what the Constitutional Court stated in Key v Attorney – General, Cape Provinicial Division and Another 1996(4) SA 187 (CC) at 195G (para 13) that:

[13] In any democratic criminal justice system there is a tension between, on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the pale.”


  1. Mr Moshoeshoe informed the accused that the punishment, of whatever nature, meted out is scant consolation if contrasted with him revealing Rehanna’s whereabouts: dead or alive. He reminded the accused that whereas the law must take its course in exacting punishment the truth will set him (the accused) free spiritually as he will be relieved of carrying the burden of guilt for the rest of his life. I reckon by “the truth will set you free” Mr Moshoeshoe had in mind what was said by Jesus Christ in the Holy Bible, the book of John, Chapter 8: verse 32 that:

If you hold my teaching, you are really my disciples. Then you will know the truth, and the truth will set you free.”


  1. Finally, Mr Moshoeshoe explained what adverse impact Rehanna’s disappearance has had on the family, particularly that of Rehanna’s mother, Mrs Mpho Moshoeshoe, and Rehanna’s paternal grand mother who is 77 years old, whose health has taken a severe knock. He explains that Rehanna’s mother is a nervous wreck and has not been able to resume her teaching duties since Rehanna’s disappearance. She is still under medical and psychological treatment and her medical aid has been exhausted.




  1. The ordeal suffered by Ms D and Rehanna’s family in their respective contexts brings me to what Ponnan JA, writing for the Court, stated in S v Matyityi 2011(1) SACR 40 (SCA) at 51f – h:

None of her rapists used condoms. Each ejaculated. Although not properly explored during her evidence, it is obvious that her ordeal must have been a horrific one. She had to submit to the brutal and naked invasion of her person in the knowledge that her boyfriend may have been mortally wounded. What we do know is that the trauma she suffered was so severe that, by the time of the trial, approximately one year after the incident, she was still receiving counseling. According to her, the experience had made her deeply afraid and had even impacted negatively on her relationship with her family. As this court has previously sought to make clear, women in this country 'have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquility of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives' ( S v Chapman 1997 (2) SACR 3 (SCA)).”


  1. Notwithstanding the evidence in aggravation and his conviction on the eight charges the accused elected not take the stand and explain what happened to Rehanna and why he did the things to Ms D attributed to him. The judgment on the merits show that during the bail proceedings in May/June 2010 the accused suffered from selective amnesia by testifying that he could not recall what he discussed with Rehanna on Saturday 20 February 2010 and Sunday 21 February 2010; the eve and the day of Rehanna’s disappearance, respectively. However, during the trial his memory was lucid and proffered that they had a wonderful conversation on the Saturday which they revisited on the Sunday of her disappearance. He has now spurned the opportunity to explain these discrepancies.




  1. The accused raised the family’s hopes when he hinted at revealing where Rehanna was when he spoke to Mr Themba Ngwenya on Monday 22 March 2010. He undertook to revert to Mr Ngwenya but failed to do so. In addition he informed Colonel Perumel on 06 March 2010 that he had resolved to confess to what has happened to Rehanna but wanted first to speak to the Director of Public Prosecutions and to Rehanna’s mother. Whilst preparations were being considered and/or made to this end he attempted to commit suicide.




  1. In his evidence-in-chief the accused testified ad nauseam about peripheral and irrelevant matters but merely glossed over Rehanna’s disappearance in a matter of a few minutes, hardly occupying more than two pages of the transcribed record. During the trial the accused was in jovial mood and cracking jokes. His whole demeanour was of a person who did not care and derived a measure of satisfaction from the occasion and even laughed at times. During the sentencing phase he sat expressionless.




  1. In S v Matyityi (above) at 51j – 52b the SCA stated:

The one person who could have filled those gaps was the respondent [the accused]. He chose not to. That was his right. S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252) para 40.




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