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 419
|
|
Maseko v S - Appeal (A97/2022) [2023] ZAFSHC 419 (26 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
No: A97/2022
In
the appeal between:
FANIE
WILLIAM MASEKO
Appellant
And
THE
STATE
Respondent
CORAM:
REINDERS, ADJP
et
JORDAAN, AJ
JUDGMENT
BY:
REINDERS, ADJP
HEARD
ON:
2 OCTOBER 2023
DELIVERED
ON:
26 OCTOBER
2023
This
judgment was handed down in open court and on even date circulated to
the parties’ representatives by electronic mail
communication.
[1]
On 9 October 2018 the appellant was arraigned in the Regional Court
of this Division held at Frankfort on
a charge of rape of a minor
child (aged 7 years at the time) in contravention of sec 3 of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act
[1]
,
read with the provisions of sec 51 (1) of the Criminal Law Amendment
Act.
[2]
[2]
The appellant pleaded guilty to the charge and was subsequently
convicted and sentenced to eighteen years
imprisonment. Aggrieved
with the imposed sentence, the appellant applied for leave to appeal
the latter, which was granted by the
trial court. Appellant’s
grounds for appeal entail in summary that the court a quo
over-emphasized the seriousness of the
offence and the aggravating
circumstances at the expense of the personal circumstances of the
victim, that the imposed sentence
is inappropriate and out of
proportion in relation to the totality of the facts in mitigation
(inducing a sense of shock) and that
another court “might have
imposed another sentence”.
[3]
It is trite law that the power of this court sitting on appeal, are
limited when it comes to an
imposed sentence in so far as
interference with same is only warranted where the sentencing court
committed a material misdirection,
or the sentence imposed is not
proportionate, or such a court did not exercise its discretion
properly or at all.
[3]
[4]
On a reading of the magistrate’s judgment it is evident that
the magistrate was well apprised of the
principles set out in
S
v Zinn
as well as the time honoured purposes of sentencing.
She had proper regard to the personal circumstances of the appellant,
the
crime of rape, the interest of the community and that of the
victim. Appellant was convicted of having raped the complainant (Part
1 of Schedule 2) and accordingly the crime was to be read with the
provisions of sec 51(1) of Act 105 of 1997.
4.1
The trial court had proper regard to the personal circumstances of
the appellant, including his age
of 41 years, being a widower
financially supporting two minor children of whom he is not the
primary caregiver. He did piece jobs
earning R 1 200-00 monthly. The
magistrate took into account that the appellant had a long history of
committing crime. She explained
that, although the appellant was a
first offender in respect of the crime of which he was convicted,
previous sentences imposed
seemingly did not give him “the
incentive to turn away from criminal behaviour”. The magistrate
considered that the
appellant had been in custody at the time for a
period of 9 months awaiting trial. She also deemed his plea of guilty
to be indicative
of his remorse.
4.2
In considering the interest of the community the learned magistrate
emphasised that, failure by the
courts to safeguard vulnerable
children, the community might take the law into their own hands.
4.3
With reference to the complainant’s (victim) assessment report
by a qualified social worker, the magistrate
emphasised the
devastating effect of the rape on the minor, including behavioural
issues resulting from the incident. The magistrate
deemed it
aggravating that the appellant was approximately 38 years old at the
time of the incident, rendering the victim an easy
target. The
medico-legal report of the victim revealed that she had suffered
injuries.
[5]
Although not listed as a ground of appeal, it was contended in
appellant’s heads of argument and in
submission before us that
the trial court erred in not having taken into account the evidence
of appellant that he was under the
influence of alcohol when he
committed the crime.
5.1
The typed record reveals that, on a question posed to appellant
during cross-examination about
his state of sobriety at the
time of the incident, the appellant answered:
[4]
“
ACCUSED
: I
did drink on that day.
PROSECUTOR
: Were
you drunk or just medium.”
ACCUSED:
I was
drunk.”
5.2
The record then reflects that the legal representative of the
appellant in the court a quo
submitted:
[5]
“
Your worship, it
came out that he was under the influence of liquor on the day of the
incident. This is not
per se
a mitigating factor.”
5.3
The magistrate in her judgment held as follows:
“
With reference to
the offender – and that is now your personal circumstances- I
am not going to repeat everything that the
legal representative
said.”
[6]
5.4
The magistrate concluded towards the end of her judgment:
“
After considering
the factors placed before me by your legal representative I am then
satisfied that the circumstances so put forward
indeed constitute
substantial and compelling circumstances. Therefore the court is at
liberty to deviate from the prescribed minimum
sentences.”
[7]
5.5
In my view therefore there is no merit in the contention that the
magistrate did not take the appellant’s
status of sobriety into
consideration in finding a just sentence in the circumstances to be a
custodial sentence of 18 years.
[6]
Taking into account the principles enunciated in the case law
referred to above, it is clear that sentencing
is the prerogative of
the trial court. I am unable to find that the magistrate had
misdirected herself in any way. She properly
took into account and
considered the factors placed before her when carefully exercising
her discretion in balancing all of the
mitigating and aggravating
factors.
[7]
Accordingly I do not find any reason to interfere with the imposed
sentence. Having reached the conclusions
as I did, it follows that
the appeal stands to be dismissed.
[8]
The following order is made:
The appeal is dismissed.
C.
REINDERS, ADJP
I
concur.
M.
JORDAAN, AJ
On
behalf of the appellant:
Ms S
Kruger
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the respondent:
Adv S
Tunzi
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
[1]
32 of 2007.
[2]
105 of 1997.
[3]
S v
Rabie
1975(4)
SA 855 (A) at 857 D-F;
S
v Makondo
2002 (1) All SA 431 (A).
[4]
Record:
p 26 lines 18-22.
[5]
Record:
p 28 lines 14-16.
[6]
Record:
p 37 lines 17-19.
[7]
Record:
p 42 lines 5-9.