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2023
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[2023] ZAFSHC 57
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Metsing v S (A119/2022) [2023] ZAFSHC 57 (2 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number:
A119/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the appeal of:
THABANG
JOHN METSING
Appellant
and
THE
STATE
Respondent
CORAM:
VAN RHYN, J
et
BERRY, AJ
HEARD
ON:
13 FEBRUARY 2023
DELIVERED:
2 MARCH 2023
JUDGMENT
BY: VAN RHYN, J
[1]
The appellant was arraigned and convicted in the Regional Court,
Bloemfontein on a
charge of Rape read with the provisions of Section
51(1), Part 1 of Schedule 2 of the Criminal Law Amendment Act,
[1]
which provisions were duly explained to the appellant at the
commencement of the trial.
[2]
Appellant was duly represented during the trial which commenced on 28
October 2019.
The appellant pleaded not guilty to the charge. The
appellant admitted having sexual intercourse with the complainant,
with her
consent, on 3 April 2019 and furthermore admitted the
identity and age of the complainant.
On 29
October 2019 the appellant was sentenced to life imprisonment. Being
sentenced to life imprisonment the appellant has an automatic
right
of appeal.
[3]
The appeal is against the sentence only. The grounds upon which the
Appellant’s
appeal rests can concisely be summarised as
follows:
3.1
That the court
a quo
erred by disregarding the youthfulness of
the appellant and his prospects of rehabilitation;
3.2
That the court
a quo
erred in sentencing the appellant to an
inappropriate sentence by disregarding the evidence that he was a
first offender and that
he had been in custody for six (6) months
pending the trial;
3.2
that the court
a quo
erred in over-emphasizing the factors in
aggravation and deterrence and by doing so, failed to take proper
cognisance of the factors
in mitigation.
[4]
Prior
to imposing a prescribed sentence,
it
is
incumbent upon a court in every case, to assess, upon a consideration
of all the relevant factors of the case, whether the prescribed
sentence is proportionate to the offence. It is enough for the
sentence to be departed from if it would be unjust to impose it.
[2]
T
he
determinative test set out in
S
v Malgas,
[3]
is whether or not, when the circumstances of a particular matter are
considered, the prescribed sentence would be rendered unjust
in that
it would be disproportionate to the crime, the criminal and the needs
of society, so that an injustice will be done by
imposing that
sentence.
[4]
[5]
I now turn to deal with the facts of the present
matter as they appear from the record.
On Wednesday, 3 April
2019 at approximately 20h00, the complainant, a 29-year-old female
from Hobhouse, Free State Province, visited
a friend’s house
while in the company of 5 male friends. When she arrived, the men
were already drinking “Pine”,
an alcoholic drink. The
complainant joined the men and consumed alcohol with them. After an
argument ensued regarding whose obligation
it was to purchase more
alcoholic drinks, the complainant and three (3) of the men left.
[6]
The complainant then decided to proceed to her aunt’s house but
when she found
no-one home, she agreed to accompany the appellant. He
had followed her to her aunt’s home and invited her to join him
for
more drinks. The complainant suggested a place where alcohol is
sold, but they found the tavern to be closed. The appellant and
the
complainant wandered the streets looking for taverns in the area but
found all the taverns being locked up as it was already
past 23:00 at
night.
[7]
The appellant indicated that he had to work the following day and
that it is time
to retreat to bed. He then told the complainant that
she should accompany him where after he grabbed her and forced her to
accompany
him. The complainant fell and the appellant pulled her
while she was lying on the tarmac, which caused several bruises and
injuries
to her face. The complainant screamed for help.
[8]
The second state witness, KF Thlabana (“Mabana”) a family
member of the
complainant, who had been awoken by the complainant’s
calls for help, confirmed the version presented by the complainant
that the appellant dragged and assaulted her. When Mabana tried to
intervene, the appellant threatened her. The appellant injured
the
complainant by pressing his fingers into her eye sockets, leaving her
eyes red and painful.
[9]
It was raining and the complainant’s clothes were wet and
covered in mud. She
decided to stop any resistance. On the way to his
place of residence, the appellant took an empty bottle, broke it and
threatened
to stab her with the broken bottle if she presented any
further resistance.
[10]
At their arrival at the appellant’s home, the complainant
removed her wet clothes, except
for some underwear. She testified
that since it was wet and muddy, she would not be able to sleep
wearing wet clothes. She then
got into the appellant’s bed. The
appellant joined her and they went to sleep. Later, after they both
slept for some time,
the appellant used one of six available condoms
and had sexual intercourse with the complainant. There was a
considerable break
in between the three times when the appellant had
sexual intercourse with the complainant, each time against her will.
The complainant
explained that she indicated to the appellant that he
may do whatever he wanted with her because she had given up any
resistance.
[11]
The next morning, after they had sexual intercourse for the third
time, the appellant asked whether
he could accompany the complainant
on her way home. The complainant was in a hurry to assist her child
who had to attend school.
The complainant then immediately went to
Lefo. Lefo was one of the other four men who was in the company of
the complainant the
previous evening. The complainant showed him the
injuries that she had sustained due to being manhandled and assaulted
by the appellant.
Lefo confirmed that he learned from the complainant
that she had been raped by the appellant and he noticed the bruises
on her
neck.
[12]
The appellant’s application in terms of the
provisions of section 174 was refused by the court
a quo
and
the appellant testified in his defence. His version of the events was
that the complainant in fact followed him to his place
of residence
and indicated to him that she did not have a place to sleep. He
assaulted her because she removed money from his pockets.
The
appellant testified that they had sexual intercourse at intervals
during the night and early the following morning.
[13]
In his judgment the magistrate found that the complainant was under
the influence of alcohol
after spending the greater part of the
evening drinking with the five men. From the report by the medical
practitioner, handed
in as Exhibit “A” it is evident that
the complainant suffered extensive superficial lacerations on the
forehead, cheeks,
chin and nose. Superficial lacerations and
abrasions to her neck and swollen upper and lower eyelids to her eyes
were noted. Regarding
the gynaecological examination no injuries were
found.
[14]
Rape is a heinous crime and an invasion of privacy of an individual.
Due to the escalating levels
of serious crime the Legislature
considered rape as one of many serious crimes and ordained life
imprisonment as the sentence to
be imposed in instances where a
complainant had been raped more than once, as in the matter at hand.
It is evident from the Victim
Impact Report that the complainant
experienced severe trauma as a result of the appellant’s
conduct which had a lasting impact
upon her.
[15]
The Appellant’s personal circumstances are as follows: He was
29 years of age at the time
of sentencing. He is not married and has
a child aged 7 years. The child is residing with her maternal
grandmother and is financially
being cared for by her mother. The
appellant does not pay maintenance in respect of the child. His
highest scholastic qualification
is Grade 7. Prior to his arrest he
was doing odd jobs and earned R80.00 per day. The Appellant was
staying with a sibling who he
cared for. The appellant had been in
custody awaiting trial for approximately 6 months. He has no previous
convictions.
[16]
The minimum sentences to be imposed are ordained by the Legislature
and the courts must not shrink
from their duty to impose, in
appropriate cases, the prescribed minimum sentences. It is trite that
the sentence should reflect
the severity of the crime committed, the
blameworthiness of the offender and serve the interest of society, as
propagated by the
Zinn
triad.
[5]
[17]
In the
Vilakazi
case, Nugent JA
observed that it is
“…
only by
approaching sentencing under the Act in the manner that was laid down
by this court in
S
v Malgas
… that incongruous and disproportionate sentences are capable
of being avoided”.
[6]
In
S
v De Beer
[7]
Ploos van Amstel AJA, on behalf of the majority, warned that it is
the duty of the courts to avoid injustice and to guard against
adhering slavishly to the prescribed minimum sentences. The Supreme
Court of Appeal in
S.v.
Malgas
held
that: “... The greater the sense of unease a court feels about
the imposition of a prescribed sentence, the greater its
anxiety will
be that it may be perpetrating an injustice. Once a court reaches the
point where unease has hardened into conviction
that an injustice
will be done, that can only be because it is satisfied that the
circumstances of the particular case render the
prescribed sentence
unjust or, as some might prefer to put it, disproportionate to the
crime, the criminal and the legitimate needs
of society. If that is
the result of the consideration of the circumstances the court is
entitled to characterise them as substantial
and compelling and such
as to justify the imposition of a lesser sentence”.
[8]
[18]
The Complainant did not suffer from severe physical injuries apart
from being dragged on the
road surface which left superficial
lacerations on her face. The injuries to her eyes and neck seem more
serious and consisted
of swelling and abrasions. There is no evidence
that the injuries to her eyes and neck are of a permanent nature. The
Complainant
indicated that she was consuming alcohol with the men.
From the medico-legal report the presence of alcohol was noted when
she
was examined the following afternoon at 14h00. The appellant was
severely intoxicated and he expressed his regret in what he did
by
testifying that if he had not been drinking he would not have
insisted on having sexual intercourse with the complainant.
[19]
With reference to
Fowlie
v Rex
[9]
it was argued on behalf of the appellant that
“…
although
a man may not be so drunk as to be excused the commission of a crime
requiring special intent, yet he may have been so
affected with
liquor that his punishment should be softened…” In
S
v Ndhlovu
[10]
it was held as follows:
“… intoxication is one of humanity’s age-old
frailties, which may, depending on the
circumstances, reduce the
moral blameworthiness of a crime, an may even evoke a touch of
compassion
through the perceptive understanding that man, seeking solace or
pleasure in liquor, may easily over-indulge and thereby to do
the
things which sober he would not do.”
[20]
Taking into consideration all factors relevant to the nature and
seriousness of the criminal
act itself, as well as all relevant
personal circumstances relating to the Appellant including the
possibility of rehabilitation,
I am satisfied that a lesser sentence
is called for in this case, thus justifying a departure from the
prescribed sentence of life
imprisonment.
[21]
In my view, the Appellant ought to be
sentenced to a lengthy term of imprisonment. As such, I propose that
the Appellant’s
appeal be upheld, and his sentence set aside
and be replaced with a sentence of twenty (24) years imprisonment.
[22]
In the result I propose the following orders
.
(1)
The appeal against the sentence is upheld.
(2)
The sentence imposed by the trial court is set aside and substituted
with the following:
The Appellant is
sentenced to twenty (24) years imprisonment.
(3)
The sentence in paragraph 2 above is ante-dated to 29 October 2019.
I
VAN RHYN, J
I
concur.
A
P BERRY, A J
On
behalf of the Appellant:
Ms S Kruger
Instructed
by:
LEGAL AID SOUTH AFRICA
Bloemfontein
On
behalf of the Respondent:
Adv. S Giorgi
Instructed
by:
DIRECTOR PUBLIC PROSECUTIONS
Bloemfontein
[1]
Act 105 of 1997.
[2]
S v Vilakazi
2009 (1) SACR 552
(SCA) at [15].
[3]
2001 (1) SACR 469 (SCA).
[4]
At paragraph 25.
[5]
S v Zinn 1969 (2) SA 537 (A).
[6]
S v Vilakazi at [14].
[7]
2018 (1) SACR 229
at [18].
[8]
2001 (1) SACR 469
(SCA) at [22].
[9]
1906 TS 505
at 695 G-H.
[10]
1965 (4) SA 692
(A).