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[2021] ZAKZPHC 86
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Mombika v S (AR286/2020) [2021] ZAKZPHC 86 (8 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR286/2020
In
the matter between:
MBONENI
MOMBIKA APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Ixopo Magistrates’ Court (sitting as court of
first instance):
The
appeal on sentence is dismissed.
JUDGMENT
Delivered
on 8 October 2021
Maharaj
AJ (Jappie JP concurring):
[1] The
appellant, Mboneni Nombika was found guilty of rape, in the regional
court sitting at Ixopo, in contravention
of section 3 of the Criminal
Law (Sexual Offences and Related matters) Amendment Act 32 of 2007 of
a fifteen year old female child.
[2] He
was convicted on 16 October 2019 and was sentenced to life
imprisonment on the same date.
[3] The
matter serves before this court pursuant to the provision of section
309(1)(a) of the Criminal Procedure
Act 51 of 1977 (hereinafter
referred to as (‘the Act’), which provides as follows:
‘
If a 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.’
[4] The
appeal lies only against the sentenced imposed by the court a quo.
[5] The
factual matrix in summary is that the complainant who was fifteen
years of age was raped by the appellant
on the 26 November 2017.
[6] She
was on her way, during the morning, for dancing lessons when she was
accosted by the appellant and penetrated
from behind.
[7] She
suffered injuries to her vagina comprising abrasions to the right and
left side of the labia minora and
labia majora respectively. There
was also active bleeding as recorded on the pro-forma J88 which was
handed in as exhibit ‘A’.
[8] The
complainant sustained an injury to her arm as a result of being
stabbed by the appellant. She was also
forced to perform fellatio on
the appellant.
[9] In
the absence of a misdirection on the part of the trial court, a court
of appeal will only interfere with
the sentence imposed if it is
satisfied that the sentence induces a sense of shock or where it
finds that a striking disparity
exits between the sentence that the
appeal court would have imposed in the circumstances.
[1]
[10] In
determing an appropriate sentence the court should be mindful of the
foundational sentencing principles
that the punishment should fit the
criminal, the crime as well as be fair to society and be blended with
a measure of mercy.
[2]
[11] A
court must also consider the main purposes of punishment which are
deterrent, preventative, reformative
and retributive.
[3]
[12] In
the exercise of its sentencing discretion a court must try to achieve
a judicious balance between all the
relevant factors in order to
ensure that one element is not unduly accentuated at the expense of
and to the exclusion of others.
[4]
[13] The
constitutional court in
[5]
held
as follows at paragraph [41]:
‘
ordinarily
sentencing is within the discretion of the trial court. An appellates
court’s power to interfere with sentences
imposed by the courts
bellow in circumscribed. It can only do so where there has been an
irregularity, which results in a failure
of justice, the court below
misdirected itself to such an extent that its decision on sentence is
vitiated or the sentence is so
disproportionate or shocking that no
reasonable court could have imposed it.’
[14] The
Supreme Court of Appeal in
[6]
held the following:
‘
The approach to an
appeal on sentence imposed in terms of the Act should in my view, be
different to an approach to other sentences
imposed under the
ordinary sentencing regime. This in my view, is so because minimum
sentences to be imposed are ordained by the
Act. They cannot be
departed from lightly or for flimsy reasons. It follows therefore
that a proper enquiry on appeal is whether
the facts which were
considered by the sentencing court are substantial and compelling or
not.’
[15] I
am alive to the fact that a wrongdoer must not be visited with
punishment to the point of being broken and
while justice must be
done mercy not a sledgehammer must be its concomitant.
[16] The
appellant was sentenced pursuant to the provisions of section 51(1)
of the Criminal Law Amendment Act
105 of 1997, (hereinafter referred
to as minimum sentences).
[17] Section
51(3)(a) of the minimum sentences provides as follows:
‘
If any court
referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exists 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 hereupon impose such lesser sentence.’
[18] The
appellant in this matter did not show any remorse in this matter. He
took advantage of a young child and
treated her with disdain and
contempt.
[19] In
[7]
the court held at paragraph [13] as follows:
‘
In order for the
remorse to be valid consideration the penitence must be sincere and
the accused must fully take the court into
his confidence. Until and
unless that happens the genuiness of the contrition alleged to exist
cannot be determined. After all,
before a court can find that an
accused person is genuinely remorseful, it needs to have a proper
appreciation of inter-alia, what
motivated the accused to commit the
deed, what has since provoked his change of heart and whether he or
she does indeed have a
true appreciation of the consequences of those
actions.’
[20] The
Constitution of the Republic of South Africa provides in section
12(1)(a) for everyone to free from all
forms of violence.
[21] Rape
is no doubt a serious and prevalent offence that draws
ire
from the community at large. In this matter, the appellant displayed
a wanton disregard for the sanctity of the bodily integrity
of the
child, her privacy and dignity. In my view these factors far outweigh
the paucity of his personal circumstances proffered
by his counsel.
[21] The
learned regional magistrate, in my view, was correct in finding that
his personal circumstances did not
amount to substantial and
compelling circumstances within the meaning of the expression as
contemplated in section 51(3)(a) of
the minimum sentences.
[22] In
my view, I do not believe that a sentence of life imprisonment is out
of kilter in these types of matters.
[23] In
passing, I might add as part of the ancillary orders in these type of
matters the provisions of section
299A of the Act, peremptory as it
is, enjoins the court to bring to the attention of the complainant
her right to make representations
and to be present at parole board
meetings.
[24] Accordingly,
I propose the following order:
The appeal on sentence is
dismissed.
MAHARAJ
AJ
JAPPIE
JP
DATE
OF HEARING: 8
October 2021
DATE
OF JUDGMENT: 8
October 2021
FOR
THE APPELLANT: Mr
B Mbatha
FOR
THE RESPONDENT: Mr E X
Sindani
[1]
See
S v Masala
1968 (3) SA 212
(A) at 214 H.
[2]
See
S v Rabie
1975 (4) SA 855
(A) at 862 G-H.
[3]
See
R v Swanepoel 1945 AD at 455.
[4]
See
S v Banda and others 1991 (1) SA 352 (BG).
[5]
S
v Bogaards 2013 (1) SACR 1 (CC)
[6]
S
v PB
2013 (2) SACR 533
(SCA) at 539 F-G.
[7]
S
v Matyityi
2011 (1) SACR 40
(SCA)