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2023
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[2023] ZAFSHC 62
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Mashibini v S (A38/2022) [2023] ZAFSHC 62 (9 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A38/2022
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the Appeal between:
PATRICK
MASHIBINI
Appellant
and
THE
STATE
Respondent
CORAM:
DANISO, J
et
KHOOE,
AJ
HEARD
ON:
29 AUGUST 2022
JUDGMENT
BY:
DANISO, J
DELIVERED ON:
This judgment
was handed down electronically by circulation to the parties'
representatives by way of email and by release to SAFLII.
The date
and time for hand-down is deemed to be 12H00 on 09 March 2023.
[1]
The appellant and his co-accused appeared in the regional court
Botshabelo
where they were indicted on two counts namely, murder and
rape in contravention of
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
. The charges
arose from the incident which took place on 14 August 2014, it was
the State’s case that the accused ganged
raped a 15-year-old
girl, killed her by stabbing her over 18 times and thereafter drowned
her by throwing her into the river.
[2]
On 24
October 2017 the State provisionally withdrew the charges against the
appellant’s co-accused. The appellant who had
been legally
represented was convicted after he had pleaded not guilty to both
charges. He was subsequently sentenced to life imprisonment
on each
count the court having found
no
substantial and compelling circumstances warranting a deviation from
the minimum sentence prescribed in terms of section 51(1)
of the Criminal Law Amendment Act
[1]
(“the
CLAA
”).
[3]
This appeal lies against the sentence and it is premised on the
grounds
that the sentence imposed for the respective counts is
strikingly inappropriate and that the trial court erred in its
finding that
there were no substantial and compelling circumstances
warranting a deviation from the prescribed sentence of life
imprisonment.
[4]
In the heads of argument, a further ground of appeal is raised and it
is directed
at the irregularity of the proceedings. It is the
appellant’s case that in sentencing the appellant, the trial
court erred
by invoking the provisions of s51(1) of the CLAA while
the offences the appellant was charged with were read in terms of the
provisions
of s51(2).
[5]
It is common cause that reference is made to s51(2) in the charge
sheets and when
the charges were put to the appellant by the State.
It is in that regard that the appeal is also supported by the State.
[6]
It is tested law that sentencing is pre-eminently the prerogative of
the trial court.
A court of appeal is not entitled to not to erode
this discretion and alter the sentence imposed by a lower court
unless satisfied
that the proceedings were marred by irregularities
resulting in the failure of justice or that the trial court
misdirected itself
in that, the sentence imposed is so
disproportionate or shocking that no court could have imposed it.
[2]
I am not so satisfied.
[7]
In the record of the proceedings, the facts upon which the conviction
and sentence
are based were generally of common cause
[3]
namely that:
7.1.
It was around 11h00 on 14 August 2014 when the appellant and his
accomplice accosted the deceased
in the field. After asking her where
she was going, the appellant’s accomplice produced a knife. The
deceased was forced
at knifepoint to walk towards a river where the
appellant and his accomplice took turns raping and stabbing her
several times.
The deceased was thereafter thrown into the river
whilst still alive. She ultimately drowned.
7.2.
The post-mortem report handed in by concurrence of both the defence
and the State as Exhibit
“C” indicates that the deceased
sustained at least 18 stab wounds mainly located at her vital organs,
the neck, chest
and head area. She was 15 years and some few months
old.
[8]
In terms of s51(1) read with Part 1, Schedule 2 of the CLAA, murder
in the circumstances
where the victim was killed after being raped
attracts a minimum sentence of life imprisonment unless the court
found substantial
and compelling circumstances which justified a less
severe sentence. Similarly, gang rape that is, where the rape
is perpetrated
by more than one person, the minimum sentence of life
imprisonment is applicable including the rape where the victim is
under the
age of 16.
[9]
The appellant contends that his personal circumstances should have
been considered
as substantial and compelling circumstances
warranting a deviation from the prescribed minimum sentences namely:
his age of 19
years at the time of the incident; that he has a four
year old daughter who lived with its mother; he lived at home with
his mother
and siblings; he was employed as a bricklayer earning
about R3000.00 per month; he was a first offender; he handed himself
to the
police after the crime and that he had been in custody
awaiting trial for about a year and two months therefore, the trial
court
should have imposed a lesser sentence in that regard.
[10]
The learned magistrate’s judgment on sentence
[4]
meticulously considered the appellant’s personal particulars
including the fact that he has been incarcerated pending trial
and
that he had regretted his actions which spurred him to hand himself
to the police and having done so, she weighed these factors
against
the gravity and the brutality of the crimes the appellant has been
convicted of and found that they were insignificant
to warrant a
lesser sentence.
[11]
I am in agreement with the magistrate’s conclusions. The
traditional mitigating factors
such as the appellant’s personal
circumstances cumulatively, can be taken into account as factors to
be considered as substantial
and compelling circumstances however,
they must be weighed against the aggravating factors as on their own
they are immaterial
thus do not justify a lesser sentence.
[5]
[12]
The facts of this matter demonstrate the pervasive sense of
entitlement some men believe they
have over women’s bodies and
also their lives. Rape is “
a
very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity and the
person of the victim. The rights to dignity, to privacy, and
the integrity of every person are basic to the ethos of the
Constitution and to any defensible civilisation. Women in this
country are entitled to the protection of these rights.
They
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 tranquillity of their homes without the fear,
the apprehension and the insecurity which constantly
diminishes the
quality and enjoyment of their lives.”
[6]
[13]
In this matter, the deceased was a defenceless young girl. The
appellant and his accomplice were
so brazen that they attacked the
deceased in broad daylight.
[14]
In addition to the degradation of being ganged raped, the deceased
was brutally killed. The stab
wounds that she sustained indicate an
overkill and just for the certainty of her demise, the appellant and
his accomplice threw
her into the river where she ultimately drowned.
[15]
The appellant’s regret does not without more, translate to
genuine remorse
[7]
for the
reason that, he tried to recant the confession that he made before
the magistrate and at the trial, he also attempted to
downplay his
role by shifting the blame to his accomplice. It has been said that
without remorse chances of an offender rehabilitating
are very slim.
An offender who does not accept what he did wrong will not genuinely
take steps to remedy his actions.
[16]
I am not suggesting vengeance or that the appellant should be
sacrificed at the altar of deterrence
but to rather re-affirm the
trite legal principle that sentences that courts impose must be
individualised and reflect the gravity
of the offence committed and
also have an element that speaks to the plight of the society.
[17]
In
S
v Mhlakaza and Another
1997
(1) SACR 515
(SCA)
at 519d-e the
following
is stated:
"Given
the current levels of violence and serious crimes in this country, it
seems proper that, in sentencing especially such
crimes, the emphasis
should be on retribution and deterrence.”
[18]
For the reasons that
I have set out above,
I hold that
the sentence imposed is appropriate in these circumstances.
[19]
With regard to the irregularity of the proceedings, I am of the view
that there is no merit to
the appellant’s contention that
because he was “charged” with murder and rape read with
the provisions of section
51(2) his rights to a fair trial which
includes the ability to answer to the charges as provided for in
section 35(3) of the Constitution
Act
[8]
were infringed when the court invoked the provisions of s51(1) at the
sentencing stage.
[20]
The issue of whether it is appropriate to apply the provisions of
section 51(1) during sentencing
in the circumstances where the charge
sheet made no reference to section 51(1) was clarified by the Supreme
Court of Appeal in
S
v Kekana
,
[9]
therein it is explained that:
“
[22] …the
provisions of the CLAA do not create different or new offences,
but are relevant to sentence. Thus, murder
remains murder, as a
substantive charge, irrespective of whether s 51(1) or s 51(2)
applies. Simply put, there is no such charge
as 'murder in terms of s
51(1) or s 51(2).”
[23]
As Cameron JA explained in S v Legoa
2003
(1) SACR 13 (SCA)
([2002]
4 All SA 373
;
[2002] ZASCA 122)
para 18, with reference to Rumpff
CJ's observations in S v Moloto
1982 (1) SA 844
(A) at 850C
– D:
'It is correct that, in
specifying an enhanced penal jurisdiction for particular forms
of an existing offence, the Legislature
does not create a new type of
offence. Thus, ''robbery with aggravating circumstances'' is not a
new offence. The offences scheduled
in the minimum sentencing
legislation are likewise not new offences. They are but specific
forms of existing offences, and when
their commission is proved in
the form specified in the Schedule, the sentencing court acquires an
enhanced penalty jurisdiction.
It acquires that jurisdiction,
however, only if the evidence regarding all the elements of the form
of the scheduled offence is
led before verdict on guilt or innocence,
and the trial court finds that all the elements specified in the
Schedule are present.
(As pointed out earlier, it is different when
the element specified in the Schedule relates not to the offence, but
to the person
of the accused, such as rape when
committed
(iii) by a person who has been convicted of two or more offences of
rape, but has not yet been sentenced in respect of
such
convictions.)'
[21]
On the available facts the appellant was convicted of the offences
which fall within the purview
of s51(1) read with Part 1 of schedule
2. The erroneous reference to s51(2) or the magistrate’s
omission to specifically
refer to s51(1) does not amount to an
irregularity vitiating the proceedings. “
The matter is one
of substance and not form, and a general rule could not be laid down
that the charge sheet in every case had to
recite either the specific
form of the scheduled offence with which the accused was charged, or
the facts the state intended to
prove to establish it.
”
S
v Legoa
2003 (1) SACR 13
SCA
[2002] ZASCA
122 para 21.
[22]
It
is also clear from the record
[10]
that the appellant was properly appraised of the particulars of the
crimes with which he had been charged with and was able to
respond
thereto.
Prior
to pleading to the charges, the magistrate directed the following
enquiries to the appellant’s legal representative:
COURT:
Alright. As
both charges attract the Criminal Law Amendment Act 105/1997, have
the consequences thereof been explained to your
client?
MISS DICK DICK:
It
is so Your Worship.
COURT:
He
understood?
MISS DICK DICK
: He
did.
[23]
In conclusion, the
facts of this matter and the
submissions made, do not justify an interference with the trial
court’s sentencing discretion.
[24]
The
following order
is issued:
(1)
Condonation for the late noting of the appeal is granted.
(2)
The appeal against sentence is dismissed.
NS
DANISO, J
I
agree
NJ
KHOOE, AJ
On
behalf of Appellant:
Mr
Van der Merwe
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of respondent:
Adv.
B J Classens
Instructed
by:
The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
Act No,
105
of 1997.
[2]
S v
Rabie
1975
(4) 855
(A) at 857D-E;
S
v Bogaards
2013
(1) SACR
(CC) at para 41.
[3]
In the appellant’s plea explanation and statement in terms of
s115 and s220 respectively, of the
Criminal Procedure Act 51 of
1977
, the manner in which the deceased was raped and murdered is not
disputed.
[4]
Record page 11/ 14-25; page 12/ 1-19.
[5]
Vilakazi
v The State
(576/07)
[2008]
ZASCA 87
(2
September 2008) at paragraph 58 quoting:
S
v Malgas
2001
(1) SACR 469
(SCA)
.
[6]
S
v
Chapman
[1997]
ZASCA 45
;
1997
(3) SA 341
(SCA)
at paras 3-4.
[7]
S
v Matyityi
2011
(1) SACR 40
(SCA),
para 13.
[8]
Act No, 108 of 1996.
[9]
2019
(1) SACR 1
SCA at para 22.
[10]
Record page 2/ 10-15.