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[2019] ZALMPPHC 18
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Motsoko v S (A57/2016) [2019] ZALMPPHC 18 (29 April 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: A57/2016
29/4/2019
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
In
the matter between:
ENOCK
MOTSOKO
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The
appellant Mr Motsoko was convicted by the Regional Magistrate,
Senwabarwana on a charge of rape of a 10 year old girl in
contravention
of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, read with the provisions
of
section 51(1)
and
Part I
of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
.
[2]
The appellant has pleaded guilty to the charge and in his statement
in terms section 112(2) of
the Criminal Procedure Act 51 of 1977 (the
CPA), he admitted to having had sexual intercourse with the
complainant who was a young
girl at the time of the incident. He was
duly convicted based on his guilty plea and was sentenced to life
imprisonment. Since
the appellant has been sentenced to life
imprisonment by the Regional Court, he is having automatic right of
appeal.
[3]
The appellant has directed his appeal against both conviction and
sentence. The relevant grounds
of appeal are set out in the
appellant’s notice of appeal. In the notice of appeal the
appellant is alleging that he had
pleaded not guilty to the charge
and that the court
a quo
convicted him using a skeleton docket
and sentenced him without evidence. However, during the hearing of
the appeal, his counsel
conceded that the appellant has pleaded
guilty to the charge and that his conviction is in order.
[4]
In relation to sentence, the other ground upon which the sentence is
been challenged even though
it was not stated in the appellant’s
notice of appeal and heads of argument, but raised from the bar, is
that the State has
failed to prove the age of the complainant. The
State has conceded that it has failed to prove the age of the
complainant.
[5]
It is trite that in a section 112(2) statement, an accused person
must admit all the elements
of the offence in question. The written
statement must detail the facts upon which the guilty plea is
premised. The appellant’s
counsel has correctly conceded that
the appellant in his section 112(2) statement has admitted all the
elements of the offence
and she does not find anything to fault his
conviction. The court is satisfied that the appellant in his section
112 (2) statement
has admitted all the elements of the offence and
has been correctly convicted.
[6]
Turning to sentence, it is trite that 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 the trial court was wrong, but whether it
exercised its discretion
properly
.
(See S v Romer
[1]
).
[7]
The appellant was sentenced to imprisonment for life on the basis
that the victim was under the
age of 16 years at the time she was
raped. In this case as per the charge sheet the victim was aged 10
years. The appellant in
his section 112 (2) statement merely stated
that he realised after the sexual intercourse that the complainant is
a young girl.
There is nowhere in his statement where he has made an
admission as to the age of the
complainant.
[8]
Despite that short coming in the appellant’s statement, the
State never proved
the age of the complainant. The age of the
complainant has to be proved beyond reasonable doubt, because it is a
vital element
in the determination by the trial court whether a
prescribed minimum sentence has to be imposed. It is trite that the
age of the
complainant could be proved by the evidence of her mother
or someone else present at her birth or by the production of her
birth
certificate.
(See Lubando v The State
[2016] ZASCA 4
(1
March 2016))
. In my view the court
a quo
erred in
sentencing the appellant to life imprisonment despite the State
failing to prove the age of the complainant.
[9]
In the light that the State has failed to proof the age of the
complainant, the rape which
the appellant was convicted of falls
within the ambit of Part III of Schedule 2 wherein the prescribed
minimum sentence for a first
offender is 10 years, second offender 15
years, and third offender 20 years. Counsel for the appellant has
submitted that appellant
is having two previous convictions for rape.
Counsel for the appellant could not advance any argument showing that
there were substantial
and compelling circumstances that warrant a
deviation from the prescribed minimum sentence.
[10]
In the result the following order is made.
10.1 The
appeal against conviction is dismissed
10.2 The
appeal against the sentence of life imprisonment is upheld. The
sentence
is set aside and replaced with the following:
“
The accused is
sentenced to 20 years imprisonment ante dated to the 23
rd
May 2017”.
MF. KGANYAGO
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
I
AGREE
MV SEMENYA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPELLANT : Ms MOHLAKA
INSTRUCTED BY
: LEGAL AID SA
COUNSEL FOR THE
RESPONDENT : Adv. JJ KOTZE
INSTRUCTED BY
: DPP
DATE OF HEARING
: 22 MARCH 2019
DATE OF JUDGEMENT
: 29 APRIL 2019
[1]
2011(2) SACR 153(SCA) at Para 22 & 23