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[2020] ZALMPPHC 6
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Maluka v S (A15/2018) [2020] ZALMPPHC 6 (12 February 2020)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
CASE
NUMBER: A15/2018
11/2/2020
In
the matter between:
WILSON
KABELO MALUKA
APPELLANT
AND
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant was
arraigned in the Regional Court held at Nebo on one count of rape
read with the provisions of section 51(1) of Act 105 of 1997 and one
count of assault with intent to do grievous bodily harm. He
pleaded
guilty to the count of assault with intent to do grievous bodily harm
and not guilty to the count of rape. He was convicted
on both counts.
On the count of rape, he was sentenced to life imprisonment, whilst
on the count of assault with intent to do grievous
bodily harm he was
sentenced to twelve months imprisonment. The sentences were ordered
to run concurrently.
[2]
Since the appellant was sentenced to life imprisonment in the
Regional Court, he is
having automatic right of appeal. The appellant
has appealed against both conviction and sentence on the count of
rape. However,
in his heads of arguments and when the appeal was
argued, his counsel conceded that the conviction was in order.
[3]
The background facts are
that on the 8
th
May 2015 the complainant who was fourteen
years old was called by the appellant to follow him to S[….]’s
bedroom.
The complainant and the appellant are cousins. On arrival in
S[….]n’s bedroom, the appellant told her to undress all
her clothes and she refused. He threatened to assault her. He
instructed her to lie on bed which she did. He undressed her pants
and underwear and thereafter opened her legs. After opening her legs,
he had sexual intercourse with her without her consent.
[4]
After he had finished, she
went to sleep. Her mother and S[….] arrived. She
reported to
them that the appellant had raped her. They confronted the appellant
and he denied raping her and later fled the scene.
She was taken to
hospital for check-up. The appellant denied raping the complainant.
[5]
Since the appellant is no
longer challenging conviction, there is no need for me
to deal with
his grounds of appeal on that aspect. On sentence, the appellant’s
grounds of appeal are that the sentence of
life imprisonment is too
severe and that no reasonable court would have imposed it. That the
trial court failed to take into consideration
the appellant’s
personal circumstances which are that the appellant was 26 years of
age at the time of the commission of
the offence, he was a first time
offender, he has been suffering from epilepsy since 2005, he has
spent thirteen months in custody
as an awaiting trialist and, that
the said rape cannot be described as falling into the worst rape
cases.
[6]
In relation to conviction,
I am satisfied that the trial court has taken the evidence
before it
in its totality and has analysed it properly. It can therefore not be
faulted in convicting the appellant. Counsel for
the appellant has
correctly conceded that the conviction of the appellant on the count
of rape was in order.
[7]
Turning to the sentence,
it is trite that the sentencing is the prerogative of the
trial
court, and should not lightly be interfered with. An appeal in which
the interference with the sentence will be justified
is when it is
found that the trial court has misdirected itself in some respect or
if the sentence imposed was so disturbingly
disproportionate that no
reasonable court would have imposed it. The test is not whether it
exercised its discretion properly.
(See S v Romer
2011 (2) SACR
153
(SCA) at para 22 to 23).
[8]
The sentence imposed by
the trial court is prescribed by section 51(1) of Act 105
of 1997 in
that the appellant has raped a child below the age of 16 years. The
prescribed sentence to be imposed is life imprisonment
unless the
court finds that there are substantial and compelling circumstances
justifying a deviation.
[9]
In
Director of Public Prosecution, Pretoria v Tsotetsi
[1]
Copper AJA said:
“
As
held in
Malgas
confirmed
in
S
v Dodo
, and
explained in
S
v Vilakazi
,
even though ‘substantial and compelling’ factors need not
be exceptional they must be truly convincing reasons, or
‘weighty
justification’, for deviating from the prescribed sentence. The
minimum sentence is not to be deviated from
lightly and should
ordinarily be imposed.”
[10]
The mitigating factors which the trial court took
into consideration were that the appellant was 29 years
old, he was
unemployed, he used to receive disability grant for epilepsy which
has been terminated, he is having three minor children
who are
residing with their mothers, he is a first offender, and that he has
spent thirteen months in prison out of his own making
as he was given
bail but failed to attend court and was re-arrested.
[11]
In aggravation of the sentence, the trial court
took into consideration that the appellant has planned the
offence,
has raped a fourteen years old victim, the complainant is still
traumatized as she is still having nightmares, the appellant
has
caused division between the two families.
[12]
In
Tshabalala
v The State; Ntuli v The State
[2]
Mathopo AJ said the following:
“
The facts of this
case demonstrate that for far too long rape has been used as a tool
to relegate the women of this country to second-class
citizens, over
whom men can exercise their power and control, and in so doing, strip
them of their rights to equality, human dignity
and bodily
integrity. The high incidence of sexual violence suggests that
male control over women and notions of sexual entitlement
feature
strongly in the social construction of masculinity in South Africa.
Some men view sexual violence as a method of
reasserting masculinity
and controlling women.”
[13]
The
appellant and the complainant are related. The appellant was
therefore supposed to protect her and not invade her privacy and
dignity, and in so doing, has humiliated and degraded her. The
complainant had trust in the appellant, and the appellant had broken
it. Rape of women and children has become a scourge in this country
as it is a daily occurrence. Without generalising, it seems
men no
longer have respect on women and children. They see the women and
children as objects which they can use to satisfy their
sexual
desires at any given moment without any repercussions. This cannot be
allowed to continue as if it is business as usual.
It is the duty of
the court to protect the vulnerable.
[14]
The
factors advanced by the appellant in mitigation of sentence in my
view, are not truly convincing reasons or mighty justification
for
deviation from the prescribed minimum sentence. The trial court has
considered the factors before it and correctly found that
the
aggravating factors far outweigh the mitigation factors. The
appellant did not show any remorse at all. In my view, there are
no
substantial and compelling circumstances that were presented that
justify a deviation from the prescribed minimum sentence.
[15]
In the result I make the following order:
15.1 The appeal against
both conviction and sentence is dismissed.
KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
MONENE
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR
APPELLANT : MP LEGODI
INSTRUCTED BY
: LEGAL AID SOUTH AFRICA
COUNSEL FOR RESPONDENT
: ADV MASHIANE
INSTRUCTED BY
: DPP LIMPOPO POLOKWANE
DATE OF HEARING
: 13 DECEMBER 2019
DATE OF JUDGEMENT
: 12 FEBRUARY
2020
[1]
[2017] ZASCA 83
,
2017 (2) SACR 233
(SCA) (2 June 2017) at para 27
[2]
[2019] ZACC 48
(11 December 2019) at para 1