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[2022] ZAMPMBHC 9
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Mashego v S (A05 / 2021) [2022] ZAMPMBHC 9 (18 February 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: A05 / 2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
18
FEBRUARY 2022
In
the matter between:
COLLEN
MASHEGO
APPELLANT
and
THE
STATE
RESPONDENT
Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives by email. The date and time for
hand-down
is deemed to be 10H00 on 18 FEBRUARY 2022.
J
U D G M E N T
RATSHIBVUMO
J:
[1]
Introduction.
The
Appellant was convicted by the Mhala Regional Court on a charge of
contravening section 3 of Act 32 of 2007 (rape). It was alleged
that
on 20 August 2016, he committed an act of sexual penetration with a
five-year-old child, named SG (the victim), by penetrating
his anus
with the penis, without his consent. He was convicted of this charge
and on 18 November 2020, he was sentenced to life
imprisonment. The
appeal is brought in terms of the provisions of section 309(1)(a) of
Act 51 of 1977 (the Criminal Procedure Act).
[1]
In terms of this provision, a person convicted and sentenced to life
imprisonment by a Regional Court can appeal without applying
for
leave to appeal.
[2]
Background facts
Evidence
led by the State was to the effect that on 20 August 2016, the
Appellant was at Mr. Mokoena’s yard where there were
celebrations over traditional initiations. Mr. Mokoena was his
neighbour. There were many people there including the victim and
other children. Around midnight, Mr. Mokoena realised that the victim
was missing and so was the Appellant. People attending the
celebration started searching for the victim. Information was
received to the effect that the victim was last seen in the company
of the Appellant. As a result, a group of those who were attending
the initiation celebration walked to the Appellant’s homestead.
Amongst them were Mr. Mokoena, the victim’s mother and Ms.
Gabade who all testified about what they found at the Appellant’s
place.
[3]
Upon their arrival there, members of the group searching for the
victim knocked at the door of the Appellant’s room but there
was no response. The light in his room was however on. Mr. Mokoena
peeped through the keyhole and spotted the Appellant whose pants were
off, and he was on top of the victim. He then hit the door
with a
brick and it opened. The Appellant then emerged from the room while
pulling up his pants and ran away. At that stage, he
was also armed
with a panga. A case was opened with the police and the victim was
taken to be examined by a forensic nurse. The
forensic nurse found
the victim’s anus was in a state of dilation, funnelling and
cupping, a condition she explained was
caused when a foreign object
had penetrated the anus from outside making the anus wider (cupping).
She however noted no physical
injuries.
[4]
The Appellant was the sole witness for the defence. He denied that
he
had anal intercourse with the victim. He admitted being at the
initiation ceremony elsewhere but not at Mr. Mokoena’s
place.
He also admitted to leaving the initiation ceremony around at around
23h00 saying he went to his place of residence. His
evidence mirrors
that of the State on how his room was broken open by people led by
Mr. Mokoena and how he escaped armed with a
panga. He however denied
that he was with the victim in his room or that he had anal
intercourse with him. According to him, the
group that attacked him
was accusing him of having killed someone. He only heard the rape
allegations for the first time once he
was arrested. The court
a
quo
did not accept his version of events. It found the case for
the State to have been proved beyond a reasonable doubt and convicted
him as charged.
Grounds
of appeal.
[5]
The Appellant submitted that the court
a quo
erred in finding
the case for the State to have been proved beyond a reasonable doubt.
He argued further that in the absence of
physical injuries in and
around the anus, the court
a quo
should have found this to
indicate that no anal penetration took place. He submitted further
that the court
a quo
failed to take into consideration the
contradictions between evidence presented by the State witnesses.
Lastly in respect of the
conviction, he submitted that the court
a
quo
erred in accepting that the case for the State was proved
beyond a reasonable doubt. In respect of the sentence, he submitted
that
life imprisonment was astonishingly harsh, shocking and out of
proportion with the totality of accepted facts in mitigation.
[6]
Whereas it is true that there were no physical injures noted on the
victim’s anus, it would be distortion of the evidence given by
the forensic nurse to conclude that it means there was no
penetration. Ms. Ndlovu, a forensic nurse testified that when she
opened the victim’s anus it was in a state of dilation,
funnelling and opening wider like a cup. She believed the reason for
lack of injuries may have been a result of the lubrication
in a
condom that was allegedly used. The victim himself testified that
petroleum jelly named Vaseline was applied to his anus before
he was
penetrated. In consideration of the totality of evidence, there is no
basis to conclude that the victim did not sustain
injuries because he
was not penetrated. This ground of appeal stands to be rejected on
that basis.
[7]
As for the
averment that there are contradictions in the accounts of events
presented by various witnesses, the Appellant failed
to identify. It
is not for the Appellant to make a sweeping statement that the court
erred in not attaching weight to the contradictions
without going
further to point the said contradictions. In the same breath, the
Appellant alleged that the court erred in accepting
that the case for
the State was proved beyond a reasonable doubt. In accepting that the
case for the State was proved beyond a
reasonable doubt, a court
makes a total evaluation of evidence as a whole.
[2]
It is the Appellant’s responsibility to point out the
contradictions or to unpack the basis upon which he submits that the
trial court should not have reached a conclusion that the case for
the State was proved beyond a reasonable doubt.
[8]
After going
through the evidence presented by the State witnesses, I am unable to
pick up material contradictions except those which
would be normal
when different people give personal accounts of what they observed.
For example, one would not expect all the witnesses
to testify about
what Mr. Mokoena observed when he looked into the Appellant’s
room through a keyhole as he is the only one
to have done so. This is
indicative of independence of the witnesses and that they did not
collude between them.
[3]
The
Appellant failed to direct this court to any contradictions and it is
pointless to search for the court of appeal such in order
to evaluate
if they are material or not. This ground of appeal is also bound to
fail.
The
Sentence
[9]
The imposition of a sentence for the crime the Appellant was
convicted
of is governed by the
Criminal Law Amendment Act no. 105 of
1997
.
Section 51(1)
and
51
(3) of that Act provide,
(1) Notwithstanding any
other law, but subject to subsections (3) and (6), a regional court
or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for life.
…
(3) (a) If any court
referred to in subsection (1) or (2) is satisfied that
substantial
and compelling circumstances exist
which justify the imposition
of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances
on the record of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court imposes such
a lesser sentence in respect of
an offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years.
(aA) 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:
(i)
…
(ii)
an apparent lack of physical injury to the complainant;
…
[My emphasis]
[10]
Under Part I of Schedule 2, there is a long list of very serious
crimes. Amongst
them, there is “rape of a child under the age
of 16.” The Appellant was alive to this provision when
addressing the
court
a quo
in mitigation when he asked that
his personal circumstances should be seen as substantial and
compelling circumstances that justify
a deviation from the sentence
of life to 15 years’ imprisonment.
[11]
At the time of his sentence, the Appellant was 44 years old,
single and was
a father of three daughters aged 26, 23 and 15 years
old respectively. His children were fathered with three different
women and
they all resided with their mothers or maternal relatives.
At school, he studied up to Grade 2. Through SAP69, the State proved
a previous conviction of theft against the Appellant which was
committed in 2000 in which he was sentenced to a fine of R600 or
three months’ imprisonment. The Appellant further informed the
court
a quo
that he was also convicted of murder for which he
was sentenced to 20 years in 2003. He was however released from
prison on parole
in 2014. He had been working as a security guard
earning R1000 per month from 2017 until the date he was convicted in
this case
when the matter was postponed with him in custody pending
the sentence. He was HIV positive and was on treatment for it. His
body
was responding well to the treatment.
[12]
The
prescribed sentence for rape of a child under 16 is life
imprisonment. The closer the child gets to losing the title of being
a child (turning 16) the courts are inclined to listen and in
deserving cases, find substantial circumstances through which a
sentence other than life imprisonment may be imposed.
[4]
When it comes to children whose age is much younger than 16, “the
prescribed sentences cannot be departed from lightly or
for flimsy
reasons.”
[5]
The courts
have not hesitated to even increase the sentences to life
imprisonment when lesser sentences were imposed when it comes
to
young children.
[6]
[13]
In
Director
of Public Prosecutions, Gauteng v Grobler
[7]
,
the Supreme Court of Appeal set aside a sentence of 10 years’
imprisonment, half of which was conditionally suspended which
was
imposed by the High Court sitting as a court of appeal in a matter of
rape of a child aged 10 years’ old. The High Court
had set
aside a sentence of life imprisonment that had been imposed by the
Regional Court for reason that the child had acquiesced
to sexual
intercourse. This finding was against the express provision of
section 57(1) of the Sexual Offences Act, no. 32 of 2007
which
provides that ‘a male or female person under the age of 12
years was incapable of consenting to a sexual act.’
The matter
was reverted back to the High Court for reconsideration of a
sentence. This time around, the accused was again sentenced
to life
imprisonment.
[8]
[14]
In casu
, the court
a quo
found no substantial and
compelling circumstances justifying the imposition of a lesser
sentence. The Victim Impact Report compiled
by a Social worker was
presented to the court. She noted that the victim was crying during
the interview. The report contained
the following regarding the
impact of this crime on him:
“
The victim
mentioned that he is saddened by the rape incident and it has
instilled a sense of fear in his life and loss of trust
towards men
whom he trusted to be his uncles in the community as he doesn’t
have a father in the family. He mentioned that
he experienced
recurring dreams and intrusive thoughts about the crime. He is now
afraid of being left alone at home without the
presence of the elder
person. He feels degraded and humiliated by the incident and as a
result, he lost his sense of self confidence.”
[9]
[15]
I cannot
find any misdirection on the part of the Regional Magistrate in
finding no substantial and compelling circumstances that
justify the
imposition of a lesser sentence. Without any misdirection, the powers
of an appeal court to interfere with the sentence
are very
limited.
[10]
The appeal
against the sentence stands to be dismissed.
[16]
Consequently, the following order is proposed:
[16.1] Appeal against the
conviction and sentence is dismissed.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered.
MF
LEGODI
JUDGE
PRESIDENT
MPUMALANGA
DIVISION OF THE HIGH COURT
FOR
THE APPELLANT:
MR. TR MALANGUTI
INSTRUCTED
BY:
LEGAL AID – MBOMBELA
FOR
THE RESPONDENT: ADV Z
MATA
INSTRUCTED
BY:
OFFICE OF THE DPP - MBOMBELA
DATES
HEARD:
28 JANUARY 2022
JUDGMENT
DELIVERED: 18 FEBRUARY 2022
[1]
309
.
Appeal from lower court by person convicted
1(a)
Subject to
section
84
of the Child Justice Act, 2008 (Act No. 75 of 2008), any person
convicted of any offence by any lower court (including a person
discharged after conviction) may, subject to leave to appeal being
granted in terms of
section
309B
or
309C
,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction: Provided that
if that
person was sentenced to imprisonment for life by a regional court
under section 51(1) of the Criminal Law Amendment Act,
1997 (Act No.
105 of 1997), he or she may note such an appeal without having to
apply for leave in terms of section 309B:Provided
further that the
provisions of
section
302
(1)(b)
shall apply in respect of a person who duly notes an appeal against
a conviction, sentence or order as contemplated in
section
302
(1)(a).
[2]
S v Van
der Meyden
1999 (1) SACR 447 (W)
[3]
S v
Oosthuizen
1982
(3) SA 571 (T)
[4]
See
S
v Vilakazi
2009
(1) SACR 552
(SCA) where the Supreme Court of Appeal found
substantial and compelling reasons to impose a sentence other than
life when the
child raped was ‘possibly over15.’
[5]
S
v Malgas
2001
(1) SACR 469
(SCA) para 8 & 9.
[6]
See
S v
De Beer
3 All AS 746 (GJ) where a sentence of 15 years imprisonment was set
aside on appeal and replaced with life imprisonment on a
charge of
rape of a child aged 8 years’ old.
[7]
2017 (2) SACR 132 (SCA).
[8]
see
Grobler
v S
(A40 2013) [2017] ZAGPJHC 383 (12 December 2017).
[9]
See paragraph 8.2 on p.254 of the appeal bundle.
[10]
R v
Dhlumayo
1948
(2) SA 677
(A).