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[2013] ZAGPJHC 287
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Mathuse v S (A206/2013) [2013] ZAGPJHC 287; 2014 (2) SACR 38 (GJ) (4 November 2013)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE NO: A206/2013
In the matter between:
MATHUSE,
SAM
Appellant
and
THE
STATE
Respondent
J U D G M E N T
MASHILE,
J
:
[1] The Appellant, a 33
year old man, appeared before the Regional Court of Gauteng held at
Boksburg on 27 May 2010 subsequent
to a charge of rape of B L, a 23
year old woman, on 7 November 2009. The rape was with
aggravating circumstances as envisaged
in
Section 51
of the
Criminal
Law Amendment Act No. 105 of 1997
and occurred at Ramaphosa near
Reiger Park in Boksburg.
[2] The Appellant
was throughout the proceedings legally represented. He pleaded
not guilty to the charge preferred
against him and tendered no plea
explanation. On 4 October 2010 the trial court nonetheless
found him guilty and convicted
him. On 13 December 2010 the
Appellant was sentence to life imprisonment.
[3] The Appellant
applied for leave to appeal against sentence on 6 July 2012 and the
trial court granted such leave.
For that reason the Appellant’s
appeal is only against sentence.
[4] I do not intend
to set out the facts that led to the Appellant’s conviction
since he did not appeal against the
trial court’s pronouncement
in that regard. Needless to state however that I shall during
the judgment make reference
to portions of the facts that led the
trial court to conclude that the appropriate sentence in the
circumstances was a life imprisonment
[5] A trial court
has discretion when imposing a sentence. A court of appeal may
interfere with the trial court’s
sentencing discretion if it
believes that the trial court failed to exercise its discretion
solicitously and correctly.
[6] If a court of
appeal finds that the sentence of the trial court is disturbingly
inappropriate or is violated by misdirections
and indiscretion it
will follow as a matter of course that the sentencing discretion was
not properly applied. See in this
regard,
S v Romer
[2011]
JOL 27157
(SCA)
[7] In the premises
this Court must decide whether or not the life imprisonment sentence
imposed by the trial court provokes
one’s sense of shock or
that it is blemished by misdirections and irregularities. If it
did, this court will have the
right to interfere by setting aside the
sentence and imposing what it may consider apposite in the
circumstances.
[8] In pursuit of
establishing the above this Court needs to resolve whether or not the
trial court considered the personal
circumstances of the Appellant on
the one hand and the interest of the society, the seriousness of the
offence and its prevalence,
on the other when exercising its
sentencing discretion.
[9] To turn
therefore first to the personal circumstances of the Appellant.
9.1
The
Appellant
was a self-employed male person with an income of approximately
R300.00 per week;
9.2 He has two minor
children who were aged 10 and 2 at the time when he was sentenced;
9.3 He was 33 years old
at the time when the trial court sentenced him to life imprisonment;
9.4 He was a first
offender in so far as this offence is concerned;
9.5 The appellant had
already spent a period of 1 year in jail when the court
a quo
passed sentence;
9.6 His highest level of
education is Grade 5.
[10]
Section 51
of
the
Criminal Law Amendment Act No. 105 of 1997
prescribes a life
sentence as the minimum sentence for rape with aggravating
circumstances unless the court can find the existence
of substantial
and compelling circumstances justifying divergence from the
prescribed sentence. It would therefore seem that
the trial
court could not find such circumstances hence the imposition of a
life sentence imprisonment.
[11] The Appellant
appears to be a person who is committed in life in that despite the
high level of unemployment in the country
he made means of taking
care of himself and his family by becoming a street vendor selling
various items. His focus needs
to be redirected through reform
and rehabilitation before it gets completely off the rails.
Accordingly, I do not think that
the trial court accentuated this
particular aspect satisfactorily when imposing the life sentence.
[12] The Appellant
was only 33 years old when he was sentenced suggesting that he can
certainly be given a chance to reform
especially as a first
offender. This is not to take away the unspeakable and vicious
nature of the crime that he committed.
Since it is settled in
our law that sentencing needs to take into account rehabilitation,
retribution and reform courts must strive
to strike some kind of an
equilibrium to guarantee that the sentences that they pass
becomes a quintessence of the three.
[13]
Perhaps the following passage of Holmes JA uplifted from
Sparks
and Another
1972 (3) SA 396
(A) at 410G may just be one of the
most relevant to illustrate the point:
“
It
is the experience of the prison administrators that unduly prolonged
imprisonment brings the complete mental and physical determination
of
the prisoner. Wrongdoers must not be visited with punishments
to be of the point of broken
.”
See also
S v Skenjana
1994 (2) SA 163
(W) 168 e-g.
[14] I am aware
that Counsel for the Appellant makes heavy weather of the Appellant’
s
1
year stay in prison before he was sentence and contends vehemently
that the trial court should have taken the period into account
when
imposing the sentence. That might well be so but it cannot come
axiomatically and as a matter of course. Each
case must be
assessed on its own peculiar facts. See
S v Radebe 2013 JDR
0578 (sca), Para 14.
[15] From the above
I am of the opinion that the personal circumstances of the Appellant
cumulatively especially if they are
to be coupled with the show of
mercy should have led the trial court to find that substantial and
compelling circumstances existed
entitling it to depart from the
minimum sentence prescribed by the
Criminal Law Amendment Act No. 105
of 1997
.
[16] Quite apart
from the existence of substantial and compelling circumstances
though, as I have concluded herein, life imprisonment
sentence is too
disproportionate to the offence committed. Counsel for the
Appellant referred me to
S v Vilakazi
2009 (1) SCR 552
(SCA)
wherein Nugent JA construed the determinative test in
S v Malgas
2001 (2) SA 469
(SCA) to mean that the existence of substantial and
compelling circumstances in the instance where the sentence imposed
was too
disproportional to the offence committed was not necessary to
establish prior to the court’s interference.
[17] The following
passage from
S v GN
2010 (1) SACR 93
(T) demonstrates the grim
view that courts adopt against life imprisonment and the extent to
which they will go in order to circumvent
the imposition of such
sentence:
“
Thus,
where the Act prescribes imprisonment for life as a minimum sentence,
the fact that it is the ultimate sentence must also
be taken into
account. Accordingly, in its quest to do justice, a court will more
readily impose a lesser sentence where the prescribed
minimum
sentence is imprisonment for life. Put differently, where the
prescribed minimum is life imprisonment, a court will more
readily
conclude that the circumstances peculiar to the case are substantial
and compelling, to the extent that justice requires
a lesser sentence
than life imprisonment
.”
[18] In
S v
Mahomotsa
2002 (2) SACR 435
(SCA) Mpati JA said the following:
“
Even
in cases falling within the categories delineated in the Act there
are bound to be differences in the degree of their seriousness.
There should be no misunderstanding about this: they will all
be serious but some will be more serious than others and, subject
to
the caveat that follows, it is only right that the differences in
seriousness should receive recognition when it comes to the
meting
out of punishment. As this Court observed in S v Abrahams
2002 (1)
SACR 116
(SCA) ‘some rapes are worse than others and the life
sentence ordained by the Legislature should be reserved for cases
devoid
of substantial factors compelling the conclusion that such a
sentence is inappropriate and unjust’ (para 29)
.”
[19] I am obliged
to contrast the degree of severity of the rape in this case with
other comparable cases. The court
in
S v Abrahams
2002
(1) SACR 116
(SCA) and
S v Mahomotsa supra
did so.
[20] In the case
under consideration the Appellant attacked the Complainant in her own
home, a place that she regards as her
ultimate sanctuary. He
did not even bother that she is someone that she knows. The
evidence is that the Appellant was
once a boyfriend to the
Complainant’s other sister, Bongiwe.
[21] He stabbed her
several times with a screwdriver in order to subdue her. When
she managed to take away the weapon
he hit her with a bottled.
This case is therefore one of the most vicious. He was
certainly not remorseful and simply
denied having raped the
Complainant this is despite the fact that the Complainant’s
sixteen year old sister knows him and
caught him in the act.
[22] If one were to
compare this case to, for example,
S v GN
where a father raped
his own 5 year old daughter and still received less than a life
imprisonment sentence, it becomes inescapable
to conclude that life
imprisonment for this case is shockingly inappropriate.
[23] Similarly in
S
v Nkomo
2007 (2) SACR 198
(SCA) the Appellant had committed four
rapes on the Complainant but despite describing such rapes as brutal,
the court still felt
that the Appellant did not deserve a life
imprisonment sentence.
[24] The trend that
has emerged is that the imposition of life imprisonment sentence is
the ultimate and should only be imposed
under the most extreme
circumstances. Having said that it is worth bearing in mind the
following extract the
Mahomotsa
case:
“
There
is always an upper limit in all sentencing jurisdictions, be it
death, life or some lengthy term of imprisonment, and there
will
always be cases which, although differing in their respective degrees
of seriousness, none the less all call for the maximum
penalty
imposable. The fact that the crimes under consideration are not
all equally horrendous may not matter if the least
horrendous of them
is horrendous enough to justify the imposition of the maximum
penalty
.”
[25] The Appellant
has, as I have stated above, committed one of the most horrendous and
violent rapes. That being the
case, there are cases that were
more evil and distressful yet they received less than life
imprisonment.
[26] It is my
opinion that the sentence that should be imposed on the Appellant
should accommodate retribution, rehabilitation
and give the Appellant
a chance to reform. The society must be convinced that the
justice system is not failing it lest it
takes the law into its
hands.
[27] Having
considered all that I have mentioned hereinabove I make the following
order:
1. The appeal
succeeds. The order of the trial court is set aside and is
replaced with:
“
The
Appellant is sent to a direct imprisonment of 20 years.”
B
MASHILE
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
I
agree:
SA
THOBANE
ACTING JUDGE OF THE
SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
Date Heard: 17/10/2013
Date of Judgment:
4/11/2013
Counsel for the
Appellant: Adv. C. Xamsana
Instructed by Legal Aid
Board South Africa
Counsel for the
Respondent: Adv. SJ Khumalo
National Prosecuting
Authority