About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 66
|
|
Sani v S (A126/2022) [2023] ZAFSHC 66 (6 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
APPEAL
NUMBER: A126/2022
Reportable:
YES
/NO
Circulate
to Judges: Circulate to Magistrates: YES
/NO
Circulate
to Regional Magistrates: YES
/NO
In
the Appeal of:
TEBOHO
SANI
Appellant
and
THE
STATE
Respondent
CORAM
:
S
NAIDOO, J
et
M.E
MAHLANGU, AJ
JUDGMENT
BY:
ME
MAHLANGU AJ
DATE
OF HEARING:
27
FEBRUARY 2023
DELIVERED
ON:
6
MARCH 2023
JUDGMENT
INTRODUCTION
[1]
The
appellant was tried in the Regional Court, Free State on two counts
of the rape. The first count falls under the ambit of Section
51(1)
of the Criminal Law Amendment Act 105 of 1997 (CLAA), the charge in
contravention of section 3
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
(the SORMA). The second count falls under section 3
of SORMA.
[2]
The
appellant was duly convicted and sentenced on 11 February 2020 on the
first count. The conviction and resultant order reads
as follows:
"I
am
therefore
satisfied that you are guilty of having contravened the provisions
of
Section 3 of the Criminal Law, which is the Sexual Offences and
Related Matters Amendment Act, act 32 of 2007, read with the
provisions of Section 51(1) Part 1 of Schedule 2 of act 105 of 1997.
In
relation to count 2, I
am
in
doubt
as
to
whether the State proved that you raped the complainant
Masintle
Sithole on 1 June 2019, and for that reason I will give you the
benefit of the doubt in relation to count 2 and I will
find you not
guilty and discharge you."
[3]
This
appeal comes before this Court pursuant to an automatic right of
appeal, as life imprisonment was imposed by the Regional Magistrate.
SUMMARY
OF THE FACTS
[4]
The
facts as they relate to count 1 are that, the complainant was a five
years old at the time of the incident. Both the complainant
and her
mother gave testimony during the trial. A J88 relating to the
complainant's injuries was handed to Court by consent.
[5]
The
complainant's mother testified that on the day of the incident, she
woke up at around 5h30 to prepare herself to go to work.
The
complainant left the house at around 6h00 and she initially thought
she went to the toilet which was outside the house. On
realising that
the complainant is not coming back to the house, her mother went
outside the house to look for her. She could not
find her. She later
saw her coming from the appellant's parental home which was opposite
her home.
[6]
The
complainant's mother testified that, she called the complainant who
was coming for the appellant's premises, she could note
that the
complainant was crying but the complainant denied to have been
crying. They later went to her bedroom and she asked the
complainant
why she was crying. The complainant told her mother that, she was
crying because one of the children she was playing
with hit her with
a stone on her vagina. The complainant's mother asked the complainant
to lie on a bed to check her, she firstly
resisted but she then
allowed her mother to have a look at her vagina. She then took the
complainant to the appellant's house where
the child who was said to
have hit the complainant with a stone on her vagina was questioned.
The child disputed to have ever assaulted
the complainant. The
complainant's mother testified that, she took a stick and gave the
complainant a hiding on her buttocks. The
complainant then told her
mother that the appellant assaulted her sexually and that the assault
took place in the appellant's bedroom.
[7]
The
complaint's testimony corroborated that of her mother with
non-material differences.
The
complainant further testified that, the appellant took her into his
room, undressed her, spit on her vagina and then thereafter
sexually
assaulted her
.
[8]
The
J88 medical report indicates that the complainant had lacerations on
her posterior fourchette, on her labia minora and on her
labia
majora. The conclusion by the medical doctor is that these
lacerations are highly suspicious of forced penetration
.
[9]
The
appellant's version confirmed that the complainant did come to his
parental home, she knocked at the door and he opened for
her. He
testified that, the complainant told him that she is looking for the
appellant's siblings. He referred the complainant
to his siblings, as
they were playing he left. The appellant denied having raped the
complainant.
[10]
The complainant
denied the appellant's version.
GROUNDS
OF APPEAL
[11]
The
appellant assails the sentence imposed by the Magistrate on the basis
that the court a
quo
erred
in finding no substantial and compelling circumstances justifying a
departure from the prescribed minimum sentence.
[12]
The
second ground is that the sentence is shockingly harsh and
inappropriate and severe in the circumstances.
[13]
In
support of his ground of appeal, the appellant contends that he was
24 years old and he was the first offender. He ended school
at grade
9 and was gainfully employed
.
That
the complainant
did
not suffer any injuries.
SENTENCE
[14]
There
are well-established principles governing the hearing of appeals
against sentence. In short, punishment is pre-eminently a
matter for
the discretion of the trial court and a court of appeal should be
careful not to erode that discretion. Interference
is only warranted
if it is convincingly shown that the discretion has not been
judicially and properly exercised. The test is whether
the sentence
is vitiated by an irregularity, a material misdirection or is
disturbingly inappropriate.
[15]
It
is trite that the sentence of an accused person must be balanced
between the interests of society, the gravity of the offence
and the
personal circumstances of the accused. The trial court took into
account as mitigating factors the following personal circumstances
of
the appellant as well as the aggravating factors: The appellant was
19 years old when he committed the offence,
he
left
school
at
Grade
9
because
financial
problems.
He
was
employed at the
time of the incident and had a baby girl whose whereabouts are
unknown to him. He had no previous convictions.
[16]
The
appellant committed an offence of a serious nature. Rape is prevalent
in our society. The learned Magistrate quite rightly found
that a
heavier sentence is required when the offence is prevalent in order
to deter potential perpetrators. It must also send a
clear message to
other would-be offenders that it is not worthwhile to commit offences
of this nature.
[17]
The
facts of this case indicate reprehensible conduct on the part of the
appellant. The complainant was a five year old child who
is
defenceless. The trauma caused to the complainant by these acts of
violence, without doubt, was severe and enduring. The victims
of such
crimes deserve the protection of the law and the sentences that are
imposed should reflect that the law takes the victims'
trauma into
account.
[18]
In
S
v Bogaards
2013 (1) SACR 1
(CC),
the
following was stated at para 41:
"[41]
Ordinarily, sentencing is within the discretion of the trial court.
An appellate court's power to interfere with sentences
imposed by
courts below is circumscribed. It can only do so where there has been
an irregularity that results in a failure of justice;
the court below
misdirected itself to such an extent that its decision on sentence is
vitiated;or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it. A court of appeal can also
impose a different sentence when it sets
aside a conviction in
relation to one charge and convicts the accused of another".
[19]
In
S
v Matyityi 2011(1) SACR 40 (SCA),
the
following is stated:
"[23]
Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues
to be
alarming. It follows that, to borrow from
Ma/gas,
it
still is 'no longer business as usual'. And yet one notices all too
frequently a willingness on the part of sentencing courts
to deviate
from the minimum sentences prescribed by the legislature for the
flimsiest of reasons
-
reasons,
as here, that
do not survive scrutiny. As
Ma/gas
makes
plain, courts have a duty, despite any personal doubts about the
efficacy of the policy or personal aversion to it, to implement
those
sentences. Our courts derive their power from the Constitution and,
like other arms of State, owe their fealty to it. Our
constitutional
order can hardly survive if courts fail to properly patrol the
boundaries of their own power by showing due deference
to the
legitimate domains of power of the other arms of State. Here
Parliament has spoken. It has ordained minimum sentences for
certain
specified offences. Courts are obliged to impose those sentences
unless there are truly convincing reasons for departing
from them.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such as 'relative
youthfulness' or
other equally vague and ill-founded hypotheses that appear to fit the
particular sentencing officer's personal
notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundational to
the rule of law which lies at
the heart of our constitutional order
.
"
[20]
The
Regional Court was therefore statutorily obliged to impose the
prescribed minimum sentence of imprisonment for life for the
appellant's conviction. In
S
v Malgas
2001 (2) SA 1222
(SCA)
it
was held at para 12 that:-
"The
mental process in which courts engage when considering questions of
sentence depends upon the task at hand. Subject of
course to any
limitations imposed by legislation or binding judicial precedent, a
trial court will consider the particular circumstances
of the case in
the light of the well-known triad of factors relevant to sentence
....
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.
In
doing
so,
it
assesses
sentence
as
if
it
were
a
court
of
first
instance
and
the
sentence
imposed
by
the
trial
court
has
no
relevance.
As
it
is
said,
an
appellate
Court
is
at
large.
However,
even
in
the
absence
of
material
misdirection,
an
appellate
court
may
yet
be
justified
in
interfering with the sentence imposed by the trial court. It may
do
so
when
the disparity
between
the
sentence
of
the
trial
court and the sentence
which
the
appellate
Court
would
have
imposed
had
it
been
the
trial
court
is
so
marked
that
it
can
properly
be
described
as
'shocking',
'startling'
or
'disturbingly
inappropriate'.
It
must be emphasised that in the latter situation the appellate court
is not at large in the sense in which it is at large in the
former.
In the latter situation it may not substitute the sentence which it
thinks appropriate merely because it does not accord
with
the
sentence
imposed
by
the
trial
court
or
because
it
prefers
it
to
that sentence. It may do so only where the difference is so
substantial that it attracts epithets of the kind I have mentioned.
No such limitation exists in the former situation". (my
emphasis)
[21]
The appellant showed no respect for the complainant's rights nor did
he at any stage show the
slightest remorse. The appellant only
accepted responsibility of his action when tendering evidence before
he was sentenced. He
alleged that he may have been under the
influence of the drugs that affected his way of thinking. Sexual
assault is a widespread
and serious problem in our society. Sexual
assault is a pervasive crime. The imposition of a lesser sentence
that is the mandatory
minimum sentence will, in this instance,
diminish the horror of rape.
[22]
Therefore, I am unable to find that the sentence is vitiated by any
irregularity or material
misdirection. All the relevant factors and
circumstances were duly taken into account by the trial court.
Interference with the
imposed sentence is not warranted.
Order
[23]
In
the circumstances, I propose that the following order be made:
(i)
The
appeal against sentence on the first count of rape is dismissed;
(ii)
The
conviction
and
sentence
imposed
on
the
appellant
are
confirmed;
(iii)
The
order in terms of which the appellant remains unfit to possess a
firearm in terms of
section 103(1)
of the
Firearms Control Act 60 of
2000
, is confirmed;
(iv)
The
order in terms of which the appellant's name is to be recorded in the
National Register for Sex Offenders,
is
confirmed
E
MAHLANGU, AJ
I
concur, and it is so ordered
S
NAIDOO J
Counsel
for Appellant:
Ms S KRUGER
Attorneys
for
Appellant:
Legal Aid
South Africa
Bloemfontein
4th Floor, Fedsure
Building
49 Charlotte Maxeke
Street
Bloemfontein
Counsel
for the Respondent:
Mr W J HARRINGTON
Director
of Public Prosecutions
Bloemfontein