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[2023] ZAFSHC 226
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Sebotsa v S (A108/2022) [2023] ZAFSHC 226 (7 June 2023)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number:
A108/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the Appeal between:
MOTEBANG
JOHANNES SEBOTSA
Appellant
And
THE
STATE
Respondent
CORAM
:
DANISO, J et BARRY, AJ
HEARD
ON:
13 MARCH 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment was handed down electronically by
circulation to the parties' representatives by email and by release
to SAFLII. The
date and time for hand-down is deemed to 07 JUNE 2023
at 14H00.
[1]
The
appellant appeared duly legally represented before the regional court
Lejweleputswa for the rape of a 12-year-old girl thereby
contravening
the provisions of section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 (The
CLAA). He was
subsequently convicted based on his guilty plea in terms of section
112(2) of the Criminal Procedure Act
[1]
(The Act).
[2]
Based
on the charge, the appellant’s guilty plea and the
deliberations in the record of the proceedings
[2]
,
the charge that the appellant was convicted of emanated from the
incident which took place on 5 September 2021 at the appellant’s
house. The complainant and her younger brother sought shelter at the
appellant’s house after they were caught out in the
rain
where-after they asked to sleep over and he agreed. During the night
he went over to where the complainant was sleeping, undressed
her
panties and raped her by penetrating her vagina with his penis. The
complainant and her brother left the appellant’s
house on the
next day in the morning. She was subsequently examined on 7 September
2021 at Bongani hospital. The medical report
(J88) was handed in by
concurrence of both the State and the defence as Exhibit “C”
except for the evidence of penetration
no indication of physical
injuries was observed.
[3]
Having regard to the provisions of s 51(1) of the
CLAA on 24 March 2022 the court
a quo
found that there were no substantial
and compelling circumstances warranting a deviation from the
prescribed minimum sentence of
life imprisonment, he was accordingly
sentenced to life imprisonment.
[4]
This appeal is directed at the sentence.
The
principles
applicable in appeals where the sentencing discretion of the trial
court is attacked are trite: namely,
t
he
circumstances under which the appeal court can interfere with
sentence are limited. The test is whether the sentence is vitiated
by
an irregularity or a misdirection or it is disturbingly
inappropriate.
[3]
[5]
It is common cause that section 51(1) of the
CLAA
prescribes a minimum sentence of life
imprisonment for the rape of a child unless there are substantial and
compelling circumstances
warranting a deviation from the prescribed
sentence.
[6]
The appellant did not testify in mitigation of sentence at the trial.
On the other side, the State
relied on the complainant’s victim
impact statement in aggravation of sentence.
[7]
The appellant is aggrieved that the following factors were not taken
into account by the court
a quo
as
factors warranting a deviation from the prescribed sentence of life
imprisonment namely: the period he spent in custody awaiting
trial;
that he was a first offender; that he showed remorse for his actions
and pleaded guilty and that the complainant did not
sustain any
physical injuries. He
contends
that the
sentence of life imprisonment is
excessive under these
circumstances. It must accordingly be reduced to a sentence of
twenty-two (22) years imprisonment antedated
to 24 March 2022.
[8]
The traditional mitigating factors such as an accused’s
personal circumstances, that he
pleaded guilty, that he is a first
offender
including
his incarceration pending trial may be taken into account as
substantial and compelling reasons warranting the imposition
of a
lesser sentence than the one prescribed sentence. However, they must
be weighed against the aggravating circumstances. On
their own, they
are those factors which have been described as flimsy to be elevated
to the status of substantial and compelling
reasons warranting a
deviation from the prescribed minimum sentence.
[4]
[9]
The examination of the record of the
proceedings reveals that the court
a quo
meticulously
considered
all the factors averred by the appellant and concluded that
cumulatively, they are outweighed by the gravity and the
nature of
the offence the appellant was convicted of therefore do not justify a
lesser sentence than the prescribed sentence of
life imprisonment.
[10]
I am unable to fault the learned magistrate’s conclusions in
this regard. For the reason that:
it is aggravating
that at the tender age of twelve (12) the complainant was violated by
someone she trusted enough to seek refuge
in his home when she and
her little brother where confronted by a rainy nightfall instead, he
took advantage of her vulnerability.
[11]
It is also aggravating that complainant and her brother were clearly
children in need of care and protection.
[5]
It was observed by the court
a
quo
that
they seemed to have lacked parental care as their parents’
whereabouts on the day of the incident could not be explained
by the
State for that reason they needed to be taken care of and not to be
taken advantage of.
In
S
v D
[6]
it
was held at
page
260 f-g
that:
“
Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those
who think
they can get away with it, and all too often do. …
”
Appellant’s conduct in my view was
sufficiently reprehensible to fall within the category of offences
calling for a sentence
both reflecting the courts disapproval and
hopefully acting as a deterrent to others minded to satisfy their
carnal desires with
helpless children
.
[12]
In
S
v Vilakazi
[7]
rape
was describes as “
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.
[13]
The emotional and psychological effects resulting from the
appellant’s actions are set out in the complainant’s
victim impact statement (Exhibit “B”).
The complainant has been left traumatized by the incident. She states
that before
the rape incident she was a happy child and
enjoyed playing anywhere without fear but since the incident she has
become fearful.
She is afraid to walk away from home or playing far
from home. Her thoughts are constantly occupied by the incident,
she
has
been questioning why out of all the children the appellant
chose her and these thoughts have also affected her school
performance
with the result that she failed Grade 4.
[14]
As correctly pointed out by the learned magistrate, there is nothing
exceptional about the appellant’s
personal circumstances. It is
recorded that at the time of sentencing he was 58 years old,
unmarried and had no dependants. He
was also employed as a Sheppard
earning about R1000.00 (one thousand rand).
[15]
The prevalence, repulsive and depravity of child rape causes an
outrage in the society which looks up to
the courts to impose
sentences which speak to their plight
by
placing more emphasis on retribution and deterrence. I
t
is for that reason that the age of the appellant, his employment
background and family structure is irrelevant when sentence is
considered in the circumstances where the crime is deserving of a
prescribed minimum sentence.
[8]
[16]
The
fact that the appellant was incarcerated pending
trial is indeed
a factor that a court may take
into account as a substantial and compelling factor under these
circumstances. The
record of the proceedings reflects that the
appellant abandoned bail at his third court appearance. He first
appeared in the district
court on 8 September 2021. The matter was
then postponed to 15 September 2021 for Legal Aid thereafter to 30
September 2021 for
bail application and it is on that date that he
abandoned
his bail and the matter was postponed to
20 October 2021 for further investigations.
[17]
On 20 October 2021 the matter was transferred to Regional Court for
the appellant to appear on 15 November
2021. On that day he applied
for Legal Aid again as a result the matter was further postponed to
29 November 2021. The postponements
on 1 December and 14 December
2021, 16 February and 9 March 2022) were due to the unavailability of
the appellant’s legal
representative, for the purpose of
consultation with his legal representative and outstanding copies of
the docket respectively.
[18]
The appellant pleaded guilty to the charge on 15 March 2022
where-after the matter was postponed to 16 March
2022 and 23 March
2022 for the victim impact statement report. He was ultimately
sentenced on the 24 March 2022 approximately six
(6) months after he
first appeared in court. The delay in the conclusion of the
proceedings is not extreme. E
xcept to raise this
point nothing has been said regarding why this aspect should count in
his favour in the sense that it was not
by his own design that he was
held in custody pending trial.
The
onus is
on the appellant to adduce the facts that he relies on.
[19]
Similarly, t
he
fact that the appellant is a first offender on its own does not
constitute a substantial and compelling reason to justify a deviation
from the prescribed minimum sentence. It was pointed put by
Satchwell,
J
in
S
v Muller
[2006]
ZAGPHC 51
(23
May 2006) that:
“
[55]
The Statute prescribes one sentence for all rapists convicted of rape
or rapes which fall within the
categories or circumstances described
in Part I irrespective of the rapist’s previous clean or
sullied criminal record.”
[59]
…There is no authority for the proposition that the previous
clean record of an accused
convicted of offences in Part
I
of
Schedule 2 constitutes, in and of itself, a substantial and
compelling circumstance. At most it would be one of the
considerations
considered for exploring the possibility that, in
conjunction with other factors, it may persuade the sentencing court
to make
such a finding
.”
[20]
There is also no merit to the appellant’s criticism of the
trial court’s conclusion that a guilty
plea does not equate to
remorse. The appellant had the opportunity to testify in mitigation
he instead elected to verbalize his
remorse through his legal
representative. Much as the appellant was entitled to exercise his
constitutional right to remain silent,
taking the court into his
confidence and explain what had motivated him to commit such a
heinous crime and to also offer an apology
to the complainant would
have counted in his favour. It is important to note that on the next
morning after the rape the complainant
and her little brother left
the appellant’s house and due to the fact they knew him very
well evidence of his crime was bound
to be overwhelming therefore it
could have dawned on him that his arrest was imminent hence he
pleaded guilty. It was said in
S
v Matyityi
[9]
that
in “an open and shut case” a guilty plea cannot be
regarded as indicator of remorse.
[21]
The medical report (J88) does not allude to physical injuries
however, lack of serious physical injuries
does not make this rape
less heinous. Rape leaves the victims with life-long emotional and
psychological scars.
The
Supreme Court of Appeal in
Maila
v The State
[10]
quoting
A
manda
Spies ‘Perpetuating Harm: Sentencing of Rape Offenders Under
South African Law’
(2016)
(2)
SALJ
389
at 399
the
court held that:
“
[47]
Counsel for the appellant submitted that
the trial court did not take into
account the
appellant’s personal circumstances. It also, according to
counsel, did not take
into account that this was not one of the ‘brutal
cases’, as the
complainant was not physically injured. Counsel was
taken to task during
the exchange with the members of the bench on this
submission, but he
could not take the argument further. Correctly so,
because apart from
this minimising the traumatic effects of rape on any
victim
and more so a child, it is well documented that ‘irrespective
of the
presence of physical
injuries or lack thereof, rape always causes its
victims severe harm.”
[48]
The Legislature has specifically amended the Criminal Law Amendment
Act to
provide categorically that the fact that a complainant was not
injured during a rape cannot be considered as compelling or
substantial.
In terms of s 51(3) (a A) of Act 105 of 1997, which
came into operation in December 2007:
‘
When
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence:
…
.
(ii)an apparent lack
of physical injury to the complainant;
…
.
(iv)any relationship
between the accused person and the complainant prior to the offence
being committed.”
[22]
Having regard to the circumstances of
this matter, I am of the view that the court
a
quo
exercised its discretion properly
and judicially. The sentence of life imprisonment is appropriate
under these circumstances. It
reflects the gravity of the crime and
speaks to the plight of the victims and the indignation of the
society.
[23] In
the result, the following order is made:
1.
The appeal against sentence is dismissed.
NS
DANISO, J
I
concur
A
BARRY, AJ
On
behalf of appellant:
Ms
S. Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of respondent:
Adv.
M.S. Matsoso
Instructed
by:
The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
Act
51 of 1977.
[2]
Pages
17 to 27 of the record of the transcribed proceedings.
[3]
S v Sadler
2000 (1) SACR 331
SCA H-J.
S
v Van de Venter
2
011
(1) SACR 238
(SCA)
at para [14]
[4]
S
v Malgas
2001
(1) SACR 469
SCA-
para 9.
[5]
In
terms of section 150 of the Children’s Act 38 of 2005, a child
who has been abandoned is a child in need of care and
protection.
[6]
1995(1)
SACR 259
(A).
[7]
2009
(1) SACR 552
(SCA)
.
[8]
Supra
at fn 7,
para
58.
[9]
2011(1)
SACR 40
(SCA).
[10]
(
429/2022)
[2023]
ZASCA
3
delivered on 23 January 2023.