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[2022] ZAFSHC 16
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Motaung v S (A64/2021) [2022] ZAFSHC 16 (1 February 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate
to Magistrates: NO
Case No:
A64/2021
In
the Appeal of:
JACOB
MOTAUNG
APPELLANT
And
THE
STATE
RESPONDENT
CORAM:
MBHELE, DJP
et
VAN ZYL, J
HEARD
ON:
15 NOVEMBER 2021
DELIVERED
ON:
1
FEBRUARY 2022
JUDGMENT
BY:
MBHELE,
DJP
[1]
This is an appeal against sentence. The appellant was convicted
by the Regional Magistrate, Brandfort, of raping a 9 year old
complainant. He was sentenced to 28 years imprisonment on 07 June
2019. The appeal is with leave of this court.
[2]
The offence took place on 07 March 2010. The complainant had visited
her
friend, T[....], to play. While the two of them were playing in
front of the gate at T[....]’s parental home, T[....] just
took
off and ran into the house, without any warning, leaving the
complainant alone at the gate. While the complainant was still
wondering why T[....] hurridly ran into the house the appellant came
towards her, grabbed her and took her into some room at a
house
nearby. She screamed and cried for help as the appellant was carrying
her to no avail. When they got into this room the appellant
locked
the door and took off her T- shirt, dress and underwear. The
appellant thereafter took his T-shirt, trouser as well as the
underwear off and inserted his penis in the complainant’s
vagina. When the complainant cried the appellant put his hand on
her
mouth and threatened to kill her if she told her mother or anyone
about the incident. When he was done he threw her outside.
[3]
On her way home she stopped at T[....]’s house and told her
that
she will never pay her a visit again. Upon her arrival at home
her mother sent her to the bedroom, where her sister was, to take
a
bath. It is at that time that she complained to her sister about a
pain in her vagina. Upon enquiry she reported that she was
raped by
someone who threatened to kill her if she divulged what happened to
her to other people. She then took the police to the
place where she
was raped and pointed the appellant as her assailant.
[4]
In his notice of appeal the appellant contended that the court a
quo
erred in not taking into consideration the fact that he was a 31 year
old sole bread winner for his wife and 5 year old child at
the time
of sentencing. He submitted, further, that the trial court over
emphasized the seriousness of the offence and the
interests of
society at the expense of his personal circumstances.
[5]
The issue in this appeal is whether the trial court erred in imposing
a prison term of 28 years on the appellant after concluding that
there were substantial and compelling circumstances present that
justified the imposition of a lesser sentence than the prescribed
minimum sentence of life imprisonment for the rape of a child
under
the age of 16.
[6]
Before us Ms. Kruger submitted that the sentence of 28 years is
shockingly
inappropriate in the circumstances of this
matter. Mr. Mpemvane submitted that the appellant was fortunate
to escape life
sentence and that nothing justifies interference with
the sentence imposed by the trial court.
[7]
The sentencing powers are pre-eminently within the judicial
discretion
of the trial court, the court of appeal should be careful
not to erode such discretion. The court sitting on appeal will
interfere
if the sentencing court exercised its discretion
unreasonably or in circumstances where the sentence is adversely
disproportionate.
[1]
[8]
The offence committed by the appellant is a serious one. He violated
a
minor child in the most despicable manner. In
S
v
Chapman
[2]
Mahomed CJ said the following on the brutality of rape.
“
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
civilization.”
[9]
Sexual violence is directly linked with inequality. Perpetrators of
sexual
violence often target people that they perceive to be having
less power in the society due to factors like age, gender identity,
religious or spiritual beliefs, sexual orientation and other factors
where power dynamics are at play. The appellant attacked a
helpless 9
year old whom he knew would never be able to raise a finger to defend
herself. As if it was not enough, he even threatened
her with death
if she reported the incident to anyone.
[10]
It
has been generally accepted that rape is not about sexual pleasure
but it is used as a tool to exert power over the victim. In
Masiya
v Director of Public Prosecutions Pretoria and Another
[3]
the
following was said:
“
Today
rape is recognized as being less about sex and more about the
expression of power through degradation and the concurrent violation
of the victim's dignity, bodily integrity and privacy. In the words
of the International Criminal Tribunal for Rwanda the "essence
of rape is not the particular details of the body parts and objects
involved, but rather the aggression that is expressed in a
sexual
manner under conditions of coercion.”
[11]
Section 28 (2) of the Constitution of South Africa
[4]
provides that a child’s best interests are of paramount
importance in every matter concerning the child. The constitution
demands that the best interest of a child must take a centre stage
whenever an issue concerning a child comes to the fore.
It
is the single most important factor to be considered when balancing
or weighing competing rights and interests concerning children.
All
competing rights must defer to the rights of children unless
unjustifiable. Whilst children have a right to inter alia, protection
from maltreatment, neglect, abuse or degradation, there is a
reciprocal duty to afford them such protection. Such a duty falls
not
only on law enforcement agencies but also on right thinking people
and, ultimately the court, which is the upper guardian of
all
children.
[5]
[12]
It is clear from the above dictum that the society
as a whole, including the court as the upper guardian , have a
duty to
ensure that children are safe from harm and grow up in
nurturing environments. The extent of damage caused by sexual
violence on
children is well documented. Sexual violence
against a child denies the child a sense of security, it alters their
worldview
to the worst and negatively interferes with their complete
development. Sexual violence against children evokes communities’
indignation and often prompts them to resort to self-help to keep
their children safe. It is necessary for the courts to protect
the
society against predators of the appellant’s caliber.
[13]
Section 51 (1) and (3) of the Criminal Law Amendment Act 105 of 1997
(CLAA) prescribes
that the court can depart from the prescribed
minimum sentence of life imprisonment only if the court is satisfied
that substantial
and compelling circumstances exist warranting
imposition of a sentence lesser than life imprisonment. In
S
v
Malgas
[6]
it
was held that courts are required to regard the prescribed sentences
as “being
generally
appropriate’
for
crimes of the kind specified and enjoined not to depart from them for
flimsy reasons. Malgas tells us that courts have to provide
sound
reasons for departing from prescribed sentences.
[14]
As stated above the harm suffered by victims of rape cannot be
understated. When
the legislature enacted Section 51 of the CLAA and
prescribed life imprisonment for a rape of a minor child it was
sending a message
that rape, especially of a minor child, must be
viewed in a serious light by all. It placed a duty on our courts to
send a clear
and unambiguous message to the community and would be
offenders that failure to treat women and children with respect and
dignity
has dire consequences.
[15]
It is widely accepted that the statistics of rape in this country are
escalating
at an alarming proportion. The Minister of Police reported
on 19 November 2021 that 9556 people were raped in a period of 3
months
spanning between 1 July 2021 and 30 September 2021.
[7]
The above statistics are an indication that rape is endemic in this
country. Courts are called upon to ensure that women and children
enjoy the human rights guaranteed in the constitution and are given
some sense of security that the perpetrators of violent crimes
against them shall be brought to book.
[16]
When sentencing, the court must consider the main objectives of
punishment, being
the prevention of crime, retribution, the
deterrence of criminals, and the reformation of the offender.
Simultaneously, the court
must strike a balance between the crime,
the offender and the interest of society. The court should also take
into consideration
the provisions of Section 51 of CLAA where
applicable. The sentence imposed must be proportionate to the
offence.
[17]
In
Masuku v S
the court said the following when dealing with
departure from prescribed minimum sentences:
“
In my judgment,
the fundamental approach in a case such as this has to be one that
accepts that the mandatory sentence of life imprisonment
should only
be departed from where there is a weighty justification for doing so.
And the extent of the departure must be proportionate.
It cannot be
so lenient that it loses altogether the importance of giving effect
to the Legislature's concern about the severity
of the crime, and the
interests of society to put an end to it by at the very least making
it clear to all perpetrators and would
be perpetrators that "it
is no longer business as usual".
[18]
The sentence imposed after departing from the prescribed minimum
sentence must still send a message that
the sentencing court took
heed of the concerns of the legislature. I accept that the trial
court was correct when it found that
the following constitute
substantial and compelling circumstances warranting deviation from
the prescribed minimum sentence of
life imprisonment: That: The
appellant was 26 years old at the time of the commission of the
offence, he lost his parents
at a young age, he was a bread winner
before his incarceration, he was awaiting trial for five years with
excessive financial loss
as he had to travel from Bethlehem to
Bloemfontein on every court appearance.
[19]
When weighing mitigating factors, the offence and interest of
society, I am unable to find
that the sentence imposed by the trial
court after finding the existence of substantial and compelling
circumstances is out of
proportion with the offence committed. The
sentence of 28 years cannot be considered to be inordinately long in
the circumstances
of a person convicted of the rape of a minor child.
The offence justifies a lengthy period of imprisonment. The appeal
ought to
fail.
[20]
In the circumstances I make the following order:
1.
The appeal against the sentence is dismissed.
2.
The sentence is confirmed.
N.M.
MBHELE, DJ
I
concur
VAN
ZYL, J
On
behalf of the applicants:
Ms.
Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
Mpemvane
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
[1]
S v Rabie
1975 (4) SA 855
(A) at 857 D-E also S v De Jager and
Another 1965 (2) SA 616 (A).
[2]
S v Chapman 1997 (3) SA 341 (SCA); [1997] 3 All SA 277 (A).
[3]
Masiya
v
Director of Public Prosecutions Pretoria and Another (CCT54/06)
[2007] ZACC 9
;
2007 (5) SA 30
(CC);
2007 (8) BCLR 827
(10 May 2007)
13.
[4]
The
Constitution of the Republic Of South Africa, 1996.
[5]
De
Reuck v DPP WLD
2003 (1) SACR 448
(WLD) at 457 par 10.
[6]
S
v Malgas
2001 (1) SACR 469
SCA.
[7]
https://www.gov.za/speeches/speaking-notes-delivered-police-minister-general%C2%A0bheki-cele-mp-occasion-release-%C2%A0quarter