About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2020
>>
[2020] ZALMPPHC 64
|
|
S v Mushwana and Others (74/2019) [2020] ZALMPPHC 64; 2021 (1) SACR 440 (LP) (13 August 2020)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES: NO/
YES
(3)
REVISED
REV
NO: 74/2019
13/8/20
In
the matter between
THE
STATE
AND
NICOLE
MAGEZA MUSHWANA AND OTHERS
REVIEW
JUDGMENT
KGANYAGO
J.
[1]
This matter was laid before me as
automatic review in terms of section 85(1) of the Child Justice Act
75 of 2008 (the Act) read
with chapter 30 of the Criminal Procedure
Act 51 1977 (the CPA). Offender number 2 (child offender) who was
aged 17 years at the
time of the commission of the offence is
regarded as a minor child offender in terms of the Act. The child
offender was sentenced
to seventeen (17) years imprisonment of which
five (5) years was suspended for a period of (5) years on condition
that he is not
convicted of contravening section 3 of Act 32 of 2007
during the period of suspension. The child offender together with
five others
were charged with rape of a fifteen (15) year old girl.
The child · offender was the only one convicted of rape whilst
four
of the other accused were found not guilty and discharged. The
fifth accused did not attend trial and his trial was separated from
the others.
[2]
I have requested the opinion of the
Deputy Director of Public Prosecutions (the DDPP). They have
furnished me with a helpful opinion
and I am indebted to them. The
DDPP is of the opinion that the conviction is in order, but that the
sentence is not in accordance
with justice and should be set aside.
[3]
The child offender was legally
represented throughout the proceedings. The child offender pleaded
not guilty to the charge and denied
all the allegations levelled
against him. However, as the trial progressed, it came to light that
his defence was that of consensual
sex.
[4]
According to the evidence of the
complainant on the day of the incident she was visiting her aunt. At
about 19h00 she was walking
with her friend when they met four boys.
She knew all the four boys. The four boys told her friend to leave of
which she did. After
her friend had left, the child offender started
assaulted her. After assaulting her, the child offender parted ways
with the other
four boys and took the complainant to his homestead.
[5]
Upon arriving at the child offender's
homestead, they found five boys sitting under a mango tree smoking
tobacco. The child offender
unlocked the door of the house and they
entered. The five boys who were sitting under the mango tree also
entered the house. Inside
the house the child offender forced her to
undress and ordered her to lie on top of a bed where he raped her.
After the child offender
had finished raping her, the five boys
formed a queue and all raped her. As it was dark she could not
identify the five boys, but
was only able to identify the child
offender whom she came to the house with. The following day in the
morning, the child offender
accompanied her to her aunt's home.
[6]
On arrival at her aunt's place, she
found one Agreement and reported to her that she was raped by the
child offender and others.
They then went to the police station where
they opened a criminal case. Her friend testified that when she saw
the complainant
the following day, she had finger marks on her face
and also could not walk properly.
[7]
The child offender testified and his
evidence was that he met the complainant at White House tavern where
he was attracted to her.
He greeted the complainant and ask to talk
to her. The complainant told him that they will talk later. He later
realized that the
complainant had left. He then went to Ntembane's
tavern where he found the complainant. He proposed love to her and
she agreed.
He sat together with the complainant's friend and talked.
Later the complainant’s friend left.
[8]
After some time, the child offender left
with the complainant and they went to his homestead. On arrival at
his homestead, they
sat on the bed, talked and joked with each other.
They ended up having consensual sex. After sex they slept and woke up
the following
morning. After waking up, he accompanied the
complainant to the homestead she was visiting, and left her at the
gate of that homestead.
From there he went back home and slept. He
never saw the complainant again.
[9]
On conviction I am satisfied that the
trial court has properly analysed the evidence before it and was
therefore correct in rejecting
the child offender's version as not
reasonably possibly true, but false beyond reasonable doubt. The
child offender was correctly
convicted of rape and therefore in
relation to conviction, the proceedings appears to be in accordance
with justice.
[10]
Turning to sentence, it is trite principle of our law that the
imposition of sentence is the prerogative
of the trial court. An
appellate court may not interfere with this discretion merely because
it would have imposed a different
sentence. In other words, it is not
enough to conclude that its own choice of penalty would have been an
appropriate penalty. Something
more is required, it must conclude
that its own choice of penalty is the appropriate penalty and that
the penalty chosen by the
trial court is not. Thus, the appellate
court must be satisfied that the trial court committed a misdirection
of such a nature,
degree and seriousness that shows that it did not
exercise its discretion at all or exercised it improperly or
unreasonably when
imposing it. So, interference is justified only
where there exists a 'striking' or 'startling' disparity between the
trial court's
sentence and that which the appellate court would have
imposed. And in such instances the trial court's discretion is
regarded
as having been unreasonably exercised.
(See
S v Hewitt
2017 (1) SACR 309
(SCA) at para 8)
[11]
The trial court has convicted a child
offender and in terms of section 28(1) (g) of the Constitution, every
child has a right not
to be detained except as a measure of last
resort. In addition to the rights a child enjoys under section 12 and
35, the child
may be detained only for the shortest appropriate
period of time.
[12]
In
S v
BF
2012 (1) SACR 298
(SCA)
at para
11 the court said:
"The
attention given to a child when considering sentence is not done
vacuum. The seriousness of the offence, its impact on
the victims and
the interests of the broader society must be taken into
consideration. The law does not prohibit incarceration
of children.
However, s 28(1) (g) provides that the child 'may be detained only
for the shortest appropriate of time'. Undoubtedly
the use of 'may'
suggest that where circumstances demand incarceration as the only
appropriate sentence, it can be imposed."
[13]
Incarceration of a child offender should
be the last resort, and even in that case the child offender should
be incarcerated for
the shortest appropriate of time. In the case at
hand the child offender has been sentenced to seventeen (17) years
imprisonment
of which 5 years has been suspended for a period of five
years. In other word the effective term imprisonment is twelve years.
[14]
The child offender has been convicted of
a serious offence of rape of a complainant who was below the age of
sixteen (16) years.
Had the child offender been an adult, the
provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
would have been applicable. However, as the court had convicted
a child offender, the minimum sentences regime is not applicable
and
the appropriate sentence is left to the discretion of the trial
court.
[15]
In sentencing of the child offender, the
trial court has found that he was an immature youth at the time of
the commission of the
offence. Immaturity on its own is a strong
mitigating factor. Despite finding that the child offender was an
immature youth, the
trial court concluded that the only factor that
counted in favour of the child offender was that he was under the age
of eighteen
(18) years at the time of the commission of the offence.
That in my view contradicts the earlier finding that the child
offender
was an immature youth. By finding that the child offender
was an immature youth, means that immaturity played a role in the
child
offender committing that offence. The only aggravating factors
that the trial court has stated is that the offence was very, very
serious; the victim had suffered, and is still suffering.
[16]
The trial court has correctly referred
to the provisions of section 28(1) (g) of the Constitution, but did
not state reasons why
the child offender may not be incarcerated for
the shortest appropriate time. In my view, the trial court has
approached the sentence
of the child offender with anger. The
probation officer had recommended a sentence in terms of section
77(1) (b) of the Act, which
also emphasised that imprisonment of a
child offender must be the last resort and be for the shortest
appropriate period of time.
[17]
The trial court did not take into
consideration that the child offender was a first offender. The trial
court has over-emphasised
the seriousness of the offence and did not
attach any weight that the child offender was a first offender and an
immature youth.
It went on to state that the court is from the
township itself and when they grew up they were taught by their
parents and grandparents
to respect people and not go out there to
rape girls. In my view, this was an irrelevant statement and what the
trial court was
supposed to do was to apply section 28(1) (g) of the
Constitution read with section 77(1) (b) of the Act which it has
failed to
do. Therefore, the trial court has misdirected itself by
imposing a lengthy sentence of imprisonment by ignoring that offender
number 2 was child at the time of the commission of the offence and
was therefore duty bound to impose the shortest appropriate
term of
imprisonment.
[18]
The State is of the view that a sentence
of 8 years imprisonment will be appropriate in this matter taking
into consideration that
the child offender was seventeen (17) years
at the time of the commission of the offence of rape. I agree with
the State's submission.
In my view, with regard to sentence, the
proceedings does not appear to be in accordance with justice and
stand to be reviewed
and set aside.
[19]
In
the
result I
make
the following order:
19.1
The conviction of child offender is
confirmed.
19.2
The sentence of 17 years imprisonment is
reviewed and set aside and substituted with the following:
"The child offender is
sentenced to eight (8) years imprisonment antedated to 16
th
August 2019."
MF KGANYANGO J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
I
agree
MV SEMENYA J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE