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[2022] ZAFSHC 267
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Moshe v S (A86/2022) [2022] ZAFSHC 267 (18 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number:
A86/2022
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates
In
the Appeal of
:
ZACHARIA
EZEKIEL
MOSHE
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS J et
BOONZAAIER AJ
HEARD
ON:
3
OCTOBER 2022
DRAFT
JUDGMENT BY:
BOONZAAIER
AJ
DELIVERED
ON:
18
OCTOBER 2022
A.
INTRODUCTION
[1]
The Appellant was convicted in
the Brandfort Regional Court on one count of rape in terms
of section
3 of the Criminal Law Amendment Act (Sexual Offences and Related
matters) 32 of 2007 read with the provisions of
sec 51(1)
of the
Criminal Law Amendment Act, 105 of 1997
.
[2]
The Appellant was sentenced to life imprisonment.
[1]
[3]
The Appellant appeals his sentence of life imprisonment by virtue of
the automatic
right of appeal he enjoys.
[2]
[4]
The Appellant `s grounds of appeal against his conviction are that
the court
a quo
erred in finding that his guilt was proved
beyond reasonable doubt. It is the Appellant`s case that it is trite
law that then onus
rests on the State to prove his guilt beyond a
reasonable doubt. If the Appellant`s version is reasonably possibly
true he is entitled
to his acquittal.
[5]
The Appellant’s grounds of appeal against his sentence are
that, the Regional
Court`s sentence for a first offender was too
harsh. The finding that there were no substantial and compelling
circumstances in
the matter and did not justify the imposition of a
lesser sentence than life imprisonment, is contested. The argument is
that the
sentences was inappropriate considering the mitigating
factors. The court did not take into account his personal
circumstances.
Thus, the issue before us is whether there were
mitigating factors to be considered, more specifically substantial
and compelling
circumstances justifying a lighter sentence. Counsel
for Appellant conceded that he perused the Record and could not find
any substantial
or compelling factors to enable this court to deviate
from the prescribed minimum sentence of life imprisonment.
[6]
In deciding whether the sentence warrants our interference it should
be considered
that this court’s power to alter sentences is
limited as the infliction of punishment lies in the discretion of the
sentencing
court. A court of appeal may not simply substitute a
sentence because it prefers to do so. This court will be entitled to
interfere
only if the sentencing court materially misdirected itself
or the disparity between its sentence and the one which this court
would
have imposed, had it been the trial court is ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.
[3]
B.
MINIMUM SENTENCE LEGISLATION
[7]
The charges are subject to the minimum sentencing provisions of the
Criminal Law (Sentencing) Amendment Act 38 of 2007
, relating to a
minimum sentence of life imprisonment.
[8]
In considering the minimum sentences prescribed for the purposes of
sentencing it
is, of course, necessary to have regard to all the
factors relevant to both aggravation and mitigation of sentence. In
particular,
in matters such as this where the State seeks the minimum
sentence provided in Act 105 of 1997, and to put all the relevant
factors
into a melting pot, to determine whether life imprisonment
would be a sentence which accords with and is a just sentence, having
regard to the crime, the accused and the public interests. Taking
into account all aggravating circumstances as well as the relevant
mitigating factors and circumstances.
[9]
A Court may only impose a lesser sentence if satisfied that there are
substantial
and compelling circumstances which justify same
(section 51(3)(a)).
C.
SUMMARY OF THE FACTS:
[10]
The State alleged that on 21 January 2017 and or
near Brandfort, the Appellant unlawfully and intentionally
commit an act of multiple sexual penetration with the complainant, a
25 -year old girl.
[11]
The salient facts of the matters are as follows:
The
complainant was a sole witness and testified that on the said date, a
Saturday she had attended a funeral in Brandfort from
her hometown,
Bultfontein. On her way back, because the taxi in which she was
travelling was overloaded, she had to be off- loaded
on the freeway,
of the highway. At the same time the Appellant, also alighted from
his own taxi. She had known the accused from
Bultfontein for about
three months prior to the incident, because they were both stranded,
they set about looking for lifts. At
a stage when they were walking
the Appellant informed her that he was going to rape her. He grabbed
her bag and assaulted her with
a chain that formed part of the handle
of the bag. She then fled to a truck and clung to the handle trying
to seek help. This truck
was driving towards Brandfort. She fell off
the truck and injured herself and the driver drove off. After she had
fallen, she was
disorientated, the Appellant was at that point upon
her and pulled her towards the bushes a few meters from the road
where he had
sexual intercourse with her, without her consent. From
there they moved onto the road and she was again dragged off the road
to
the bushes where the accused had sexual intercourse with her for
the second time, without her consent. After the second encounter
she
ran onto the road and stopped a motor vehicle driven by a stranger.
She got a lift from this vehicle and left the Appellant
behind. She
was adamant that the sexual intercourse was without her consent. She
testified it was more than once, she does not
know how many times but
it was several times.
[12]
She was later taken for a medical examination. The J88 was not
disputed. The complainant verbalized
to Dr. Ciba that she was
overpowered and dragged to the crime scene. He noted that she was
emotionally disturbed and crying on
-and- off. His conclusion was
that she sustained multiple injuries and his clinical findings
supported her vaginal injuries.
[13]
The Appellant later testified in his own defense and confirmed what
the Complainant testified,
that they came from a funeral and that
they have found themselves together on the highway after both
alighted from their taxis,
they had been travelling in. They both set
out looking for lifts and that the complainant at some point without
explanation tried
to mount a truck. The Appellant further testified
that after complainant had fallen from the truck, he assisted her and
proposed
love to her. She agreed to have sexual intercourse with him.
They walked to a spot a distance from the highway where they had
consented
intercourse. They returned to the same place where they
previously had been waiting for lifts on the highway. At that stage
Complainant
indicated to him that she would like another round of
sexual intercourse with him. The had consented intercourse for the
second
time. Thereafter they went back to look for lifts. They both
stopped the Citi Golf. The Appellant paid the travelling fee but he
had a misunderstanding with the driver after the driver detected the
injuries the complainant has sustained. That was the reason
why she
left alone with the driver. The Appellant testified that they were
both drunk. He also denied that the complainant was
assaulted or that
she sustained severe injuries on her leg.
[14]
The Appellant`s explanation why the Complainant
laid a charge against him is that because she might have
encountered
a fight with her boyfriend.
[15]
The following is undisputed:
i)
that the
Appellant and complainant knew each other before the incident.
ii)
that they both
attended a funeral in Brandfort and on their return to Bultfontein
were waiting for a lift next to the highway.
iii)
sexual
intercourse took place on two occasions.
iv)
that the complainant sustained injuries as
per J88.
[16]
The Appellant pleaded not guilty to the charge and gave no plea
explanation.
D.
THE GROUNDS OF APPEAL
[17]
The appeal against Appellant`s conviction is based on the fact that
the Court
a quo
erred in finding that his guilt was proved
beyond reasonable doubt.
[18]
The Complainant was a single witness and the cautionary rule needs to
be applied. Counsel for
Appellant submitted that the court
a quo
also did not account for all the evidence which affected the
credibility and reliability thereof. The court
a quo
found the
complainant to be credible and that she stuck to her version. The
evidence should however not only be honest (credible)
but reliable
too.
[19]
It was argued that the Court
a
quo
should have taken cognizance of the
following:
i)
all the
evidence which affected the credibility and reliability of the
complainant`s evidence. It should not only be credible but
reliable
too,
ii)
Complainant`s
testimony with regards to the truck which appeared and the subsequent
assault and rape was not consistent with her
explanation under cross
examination.
iii)
She gave
inconsistent evidence with regards to her tights and the number of
times she was raped.
[20]
It was submitted by Counsel for Appellant that “
It
is trite that there is no obligation
upon an accused person,
where the state bears the onus, “to convince the court “.
If his version is reasonably possibly
true, he is entitled to his
acquittal even though his explanation is improbable. A court is not
entitled to convict unless it is
satisfied not only that the
explanation is improbable but that beyond any reasonable doubt it is
false. It is permissible to look
at the probabilities of the case to
determine whether the accused`s version is reasonably possibly true
but whether one subjectively
believe him is not the test.”
[21]
The appeal against Appellant’s sentence, is based on the
court
a
quo’s
sentence
being too harsh for a first offender. It was submitted that the court
should have taken into account:
i)
the fact that
the Appellant was a first-time offender;
ii)
the
time the Appellant was incarcerated awaiting trial.
[4]
iii)
the personal
circumstances of the Appellant
E.
AGGRAVATING CIRCUMSTANCES
[22]
It was conceded that the offence is of very serious nature. The
Respondent argued that the prevalence
of the offence needs to be
taken into account. The negative and long-term impact on the
Complainant`s is evident from her testimony.
The Appellant showed no
remorse.
[23]
Against these aggravating factors, the court
a quo
weighed the
Appellant’s personal circumstances – that he was a first
offender at the age of 29 years and had education
to grade 10; that
he was unmarried and had a child. His parents look after this child,
that he was in steady employment in the
construction industry and
earning a salary of R 2000 a month to provide for his dependants and
had been in custody for 21 (twenty-
one) months before his sentence.
A second, and perhaps more important factor which the sentencing
court took into consideration
is the all- important factor of
remorse. Appellant, confirmed he does not have any remorse.
[24]
Evidence of the true extent of the mental and psychological harm and
scarring sustained by the
complainants were led. Such evidence is not
only highly relevant for the sentencing process but also valuable. It
is clear that
in these two instances, the complainant was seriously
hurt and traumatized.
F.
MITIGATING FACTORS
[25]
The court
a quo
took into account that the
Appellant was in custody for more than a year.
G.
REMORSE
[26]
In casu
the importance of remorse, or the absence thereof, is
to establish the Appellant’s propensity for rehabilitation to
which
an acceptance that he acted in error and had a conscience is
most important. Absent such acceptance, the prospects of the
crime being successfully addressed and rehabilitation established are
lessened. This is relevant to an assessment of mitigation
(not
aggravation) of sentence. In this matter Appellant
expressed no remorse whatsoever and gave no explanation, failing
to
take the Court into his confidence.
H
DISCUSSION
[27]
More recently, in S v Vilakazi
[5]
the
court explained that particular factors, whether aggravating or
mitigating, should not be taken into account individually and
in
isolation as substantial or compelling circumstances. Nugent JA said
(para 15):
“
It
is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent
upon a court in every
case, before it imposes a prescribed sentence, to assess, upon a
consideration of all the circumstances of
the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence.”
[28]
At para [21], Nugent JA further stated:
“
The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all the evidence. …. And familiarity with the
sentence of life imprisonment must never blunt one to
the fact that
its consequences are profound.”
[29]
In S v Malgas
supra
the Court held:
“
(12)
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 and
impose what it considers to be a just and
appropriate 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...”
[30]
I am mindful of the view of Judge Brand JA
expressed in S v Monageng
:
[6]
“
Lest
there be any misunderstanding, let me make myself clear. I believe
that our courts are duty-bound to do everything in their
power to
protect the vulnerable sections of the community who fall prey to
sexually inappropriate behavior. I therefore share the
view of those
who believe that rapists, and particularly rapists of young children,
should be punished severely.”
[31]
It is clear that the complainant, after the trauma and all other
unpleasant and humiliating experiences
a rape victim has to undergo,
could not come to terms with the rape.
[32]
The complainant is suffering an ongoing emotional distress. Her
friends are teasing her.
[33]
This, to my mind, is a factor to be considered in the overall
assessment of an appropriate sentence.
[34]
As the sentencing court found, there are serious aggravating
circumstances present in the case. The appalling and outrageous
crime
committed by the Appellant was known to the Complainant and that he
inflicted serious injuries to her. She testified she
decided to join
him to seek a lift because they are from the same hometown. She
was a person whom one would expect he had
a duty to protect. In
addition to the trauma which a rape victim necessarily suffers from
the brutal invasion of her privacy, she
had to flee from him to get
away.
[34]
There is no evidence to the effect that the Rape
was premeditated, which could have been
a
mitigating factor but would not
in casu
made a difference in
the sentence.
[35]
This is so, even if an accused had not presented any evidence as
such, as the Court must look
at all the evidence holistically to
determine mitigating circumstances.
[7]
[36]
The Appellant has chosen a soft target who could
not defend herself with the cruel consequence that she
will be
scarred for the rest of her life. Although the complainant did suffer
physical injuries, the State proved severe emotional
pain on the part
of the complainant. In my view emotional pain is far worse than
physical in that the emotional scars last
a lifetime.
[37]
The above approach was further emphasized in DPP,
North Gauteng v
Thabe
the:
[8]
“
Rape
of women and young children has become cancerous in our society. It
is a crime which threatens the very foundation of our nascent
democracy which is founded on protection and promotion of the values
of human dignity, equality and advancement of human rights
and
freedoms. It is such a serious crime that it evokes strong feelings
of revulsion and outrage amongst all right- thinking and
self –
respecting members of society.”
[38]
Judge Mpati in Monageng
supra
:
“
I
must, from the outset, associate myself with the views expressed by
Nugent JA in Bongani Phillip Vilakazi v The State
Supra that rape
‘
is
a repulsive crime’, ‘an invasion of the most private and
intimate zone of a woman and strikes at the core of her
personhood
and dignity’.
[9]
As
such, persons who make themselves guilty of it must be punished
accordingly. Courts are therefore expected to give effect to
the
legislative intent as expressed in the minimum sentencing provisions
of the
Criminal Law Amendment Act and
should not proceed as if it was
‘business as usual’.”
[39]
I am mindful of the court’s view in Mabuza v
S:
[10]
“
(9)
The court was however to bear in mind that the reason for the
prescribed minimum sentence Is deterrence and it can therefore
not
simply have regard to previous sentences in comparable cases.……
(13)
Life imprisonment is the harshest punishment which courts can impose
on an offender.”
[40]
The material consideration is whether the
Appellant can be expected to offend again. While that can never
be
confidently predicted, his circumstances might assist in making at
least some form of assessment. That is where remorse or the
absence
thereof plays a vital role.
I.
TIME AWAITING TRIAL
[41]
This court was requested to deal with how courts treat a lengthy
period in custody prior to sentencing
where the minimum sentencing
provisions of
section 51
of the CLAA apply.
[11]
[42]
The
court
a quo
did
not specifically refer to the fact that the Appellant had been held
in custody for a period of 21 months prior to sentencing,
but on an
overall assessment concluded that there were no substantial and
compelling circumstances justifying a lesser sentence.
The aforesaid
assessment suffices in my opinion.
[12]
J.
CONCLUSION
[43]
The learned trial Magistrate correctly analyzed and applied the
remaining factors relevant to
aggravation and mitigation (excluding
the intoxication issue), as well as the Appellant’s personal
circumstances.
[44]
This was a violent and abhorrent crime upon a 25-year-old girl, which
has had, and will still have
devastating lifelong psychological
consequences.
[45]
I agree with the statement of JA Curlewis in S v Monaheng that
Legislature has ordained life
imprisonment as the sentence that
should ordinarily and in the absence of weighty justification be
imposed for the offence committed
by the Appellant and the courts’
obligation to respect and not pay mere lip service to that view.
[46]
As to the propriety of the sentence imposed, I do not agree that it
is so harsh that it ought
to be ameliorated by this court. In my
view, the sentencing court properly considered the gravity and
prevalence of rape, the interests
of the community, particularly its
demand for heavy sentences for rapists, and the Appellant’s
personal circumstances which,
as indicated above, it found
sufficiently weighty to warrant reduction of the mandated sentence of
life imprisonment.
[47]
Hence, I am not persuaded that the sentencing
court misdirected itself in any significant respect. In
my view,
the learned Magistrate correctly emphasized the abhorrent crime
and its dreadful consequences for the complainant
in casu
,
taking into account Appellant’s personal mitigating factors.
K.
ORDER
[48]
Accordingly I make the following order:
The
appeal against the conviction and sentence is dismissed.
A.S.
BOONZAAIER, AJ
I
concur.
C.
REINDERS, J
On
behalf of Appellant
: Adv JD
Reyneke
Instructed
by
: Legal Aid SA
Bloemfontein
On
behalf of Respondent :
Adv BG Claassen
Instructed
by
: DPP
Bloemfontein
2.
As defined in
section 51(1)
of the
Criminal Law Amendment Act
of Act
105 of 1997.
3. Provided
in section 309(1)(a) of the Criminal Procedure Act, Act 51 of 1977
(“the Criminal Procedure Act”).
[3]
S
v Malgas
2001
(1) SACR 469
(SCA)
para [12]
[4]
S
v Brophy and another
,
2007(2) SACR 56 (W).
[5]
2012
(6) SA 353
;
2009
(1) SACR 552
(SCA).
[6]
(590/06)
[2008] ZASCA 129
,
2009 1 ALL SA 237
(SCA) (1 October 2008
).
[7]
S
v Felix and another 1980(4) SA 604(A)409D-F.
[8]
All
SA (2) SACR 567(SCA) at page 577G-I.
[9]
At
para 1. See too S v Chapman
[1997]
ZASCA 45
;
1997
(3) SA 341
(SCA)
345A-B.
[10]
(A
348/2015) [2016] ZAGPPHC 334 March 2016).
[11]
The
period in custody prior to sentencing was referred to as
‘pre-sentence detention (S v Radebe and another
2013
(2) SACR 165
(SCA)
at [13]).
[12]
S
v Lucas (CC72/209{2022] ZAGPPHC 346(13 May 2022).