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2023
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[2023] ZAFSHC 41
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Radebe v S (A117/2022) [2023] ZAFSHC 41 (16 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No:
A117/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
LEFU
RADEBE
Appellant
and
THE
STATE
Respondent
CORAM
:
LOUBSER, J
et
TSANGARAKIS, AJ
HEARD
ON
:
6 FEBRUARY 2023
DELIVERED
ON
:
16 FEBRUARY 2023
JUDGMENT
BY
:
TSANGARAKIS, AJ
INTRODUCTION
[1]
The appellant was convicted in the Regional Court, Frankfort of the
following counts:
1.1
Count 1: Housebreaking with intent to Rape and Rape as described in
Section 3 of the Criminal
Law Amendment Act (Sexual Offences and
Related Matters), Act 32 of 2007, read with Sections 1, 15(1), 55,
56, 56A, 57, 58, 59,
60, 61 and 67 of Act 32/2007, as well as read
with Sections 92(2), 94, 256, 257 and 261 of the Criminal Procedure
Act (Act 51/1977),
read with Section 51(2) of Act 105/1997, as
amended by Section
1, Act 38/2007.
On
this count the appellant was sentenced to 10 years imprisonment;
1.2
Count 3: Rape as described in Section 3, read with Sections 1, 2,
56(1), 56A as amended,
50(2)(a) and 50(2)(b), 57, 58, 59, 60 and 61
of the Criminal Law Amended Act (Sexual Offences and Related Matter),
Act 32 of 2007,
further read with the provisions of Section 83, 84,
94, 256, 261, 270 and 299A of the Criminal Procedure Act, 51/1977,
further
read with the provisions of Section 51(2) Part 1 of Schedule
2 of the Criminal Law Amendment Act 105/1997 (as amended),
furthermore
read with Section 1, 2 and 120 of the Childrens’
Act, 38/2005.
On
this count the appellant was sentenced to life imprisonment; and
1.3
Count 4:Housebreaking with intent to Rape and Rape as described in
Section 3 of the Criminal
Law Amendment Act (Sexual Offences and
Related Matters), Act 32 of 2007, read with Sections 1, 15(1), 55,
56, 56A, 57, 58, 59,
60, 61 and 67 of Act 32/2007, as well as read
with Sections 92(2), 94, 256, 257 and 261 of the Criminal Procedure
Act (Act 51/1977),
read with Section 51(2) of Act 105/1997, as
amended by Section
1, Act 38/2007.
On
this count the appellant was sentenced to 10 years imprisonment.
[2]
This appeal, which lies only against the sentence of the appellant,
serves before
this Court by virtue of the appellant having exercised
his automatic right of appeal.
[3]
It is the appellants’ case that the Court
a quo
erred in
finding that no substantial and compelling reasons existed,
justifying the imposition of a lesser sentence. The appellant
moves for an order that the Court
a quo
’s judgment
should be set aside and substituted with the following sentence:
3.1
Count 1:Ten years imprisonment;
3.2
Count 3:Eighteen years imprisonment;
3.3
Count 4: Ten years imprisonment;
3.4
That the sentence imposed on Counts 1 and 4 runs concurrently with
the sentence in Count
3; and
3.5
That the sentence be antedated to 25 October 2019.
[4]
The appellants statement, in terms of Section 112 of the CPA, reveals
that:
4.1
On or about 12 July 2015 and at or near Mafahleni in the district of
Tweeling, the appellant
unlawfully and intentionally and with the
intent to commit a sexual offence, broke open and entered the house
of the 40 year old
complainant and raped her (Count 1);
4.2
On or about 15 November 2014 and at or near Mafahleni in the district
of Tweeling, the appellant
raped the 40 year old complainant (Count
3); and
4.3
On or about 7 February 2015 and at or near Mafahleni in the district
of Tweeling, the appellant
unlawfully and intentionally and with the
intent to commit a sexual offence, broke open and entered the house
of the third complainant,
aged 62, and raped her (Count 4);
[5]
It is further apparent from the record that the appellant:
5.1
Was 27 years old at the time of sentence;
5.2
Attended upon odd jobs generating an income
of approximately R1 000.00 per week;
5.3
Has no dependants;
5.4
Has three previous convictions in respect of
malicious damage to properly and theft;
5.5
Highest standard of education is Standard 6
/ Grade 8; and
5.6
Was arrested on 1 January 2019 pursuant to which the proceedings in
the Court
a quo
were finalised on 25 October 2019 i.e. he
spent ten months in custody awaiting the finalisation of the matter.
[6]
On 12 August 2022 the appellant filed a notice of appeal, premised on
the following
grounds:
“
(i)
The Court a quo erred by not giving proper consideration to the
appellant’s personal
circumstances;
(ii)
The Court a quo erred by not giving consideration to the element of
mercy;
(iii)
The sentence of life imprisonment is shockingly inappropriate and out
of proportion;
(iv)
The Court a quo over-emphasised the interest of the community and the
seriousness of the
crime;
(v)
The Court a quo erred in not finding the existence of substantial and
compelling circumstances
to deviate from minimum sentence of life
imprisonment.
”
[7]
It is trite that a Court of Appeal will only interfere with a
sentence if it is of
the opinion that such sentence is unreasonable,
unjust or is vitiated by irregularity or that the trial Court has
misdirected itself.
[1]
[8]
In
S v Malgas
2001 (1) SACR 469
(SCA)
Marais JA
remarked at paragraph 12 as follows:
“…
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.
To do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its exercise
of that discretion an appellate Court is of course entitled to
consider the question of sentence afresh. …
”
[9]
In
S v Vilakazi
2009 (1) SACR 552
(SCA)
Nugent
JA introduced the Court’s judgment with the followings words:
“
Rape
is a repulsive crime. It was rightly described by counsel in this
case as ‘an invasion of the most private and intimate
zone of a
woman and strikes at the core of her personhood and dignity’.
…
”
[10]
The ultimate test, in matters of this ilk, is whether the sentences
imposed induce a sense of
shock; in other words, whether, objectively
considered, they strike us as being clearly disproportionate in the
circumstances.
[2]
[11]
If they are not, it does not matter that we might, instead, have
imposed a lengthy determinant
sentence had we been sitting at first
instance. As Rodgers J observed in the Full Court’s
judgment in
S v GK
2013 (2) SACR 505
(WCC)
at
paragraph [14], it is not enough to justify interference by an
Appellate Court for it just to feel “
unease at the
imposition of a life sentence … [it must] have a conviction
that such a sentence would be unjust, i.e. disproportionate
to the
crime, the offence, and the legitimate needs of the community.
”
[12]
The record reveals that the trial court had due regard to all the
relevant mitigating factors
and aggravating circumstances.
These included, but were not limited to, the appellant’s
personal circumstances (as
detailed herein above), the scenarios of
the offence, the interest of the community, the appellant’s
previous convictions
as well as the period of time the appellant had
already spent in prison awaiting trial. The trial court, having
regard to
all of the circumstances aforesaid, held that a departure
from the prescribed minimum sentence will be unjust and
disproportionate
to the crimes at issue.
[13]
Moreover, the Court
a quo
was correct in finding that the
appellant did not commit the offences in issue on a whim. All
three of them were well-planned,
executed and consisted of no less
than three counts of rape and two counts of housebreaking over a
period of approximately 8 months.
[14]
But for the DNA evidence, which was the chief reason for the
appellant’s confession of
his guilt, and the fact that these
offences were unabated, the appellant would still be terrorising the
community with these most
heinous crimes, to which he had to
unavoidably confess. Sight is not lost of the fact that one of
the complainants was a
sixteen-year-old minor child.
[15]
The crimes at issue are of a most serious and abhorrent nature and
do, in our view, not justify
a deviation from the prescribed minimum
sentence of life imprisonment in respect of Count 3 or a setting
aside of the imposed sentence
in any other respect whatsoever. The
appeal must fail.
ACCORDINGLY,
I MAKE THE FOLLOWING ORDER
:
1.
The appeal against sentence is dismissed.
S. TSANGARAKIS, AJ
I agree.
P.J.
LOUBSER, J
On
behalf of the Appellant:
Mr S. Kruger
Instructed
by:
Legal Aid South Africa
On
behalf of the Respondent: Adv S.M.
Mthethwa
Instructed
by:
The Director of Public Prosecutions, Bloemfontein
[1]
S v
Pillay
1977
(4) SA 531
(A) at 535D – G.
[2]
S v
Vilakazi
ibid