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[2019] ZAGPPHC 57
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Mokhahlane v S (567/17) [2019] ZAGPPHC 57 (12 March 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA DIVISION)
Case No. 567/17
In the matter between:
LUCKY MOKHAHLANE
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
MILLAR, A J
1.
On
6 July 2017, the appellant, a 40-year-old man was convicted in the
Regional Court Oberholzer of the rape of a 14-year-old child.
He was
sentenced to life imprisonment for the rape. It was also ordered that
his name be placed on the National Register for Sex
Offenders and
orders were made in terms of the Firearms Control Act
[1]
declaring him unfit to possess a firearm
[2]
and ordering the seizure of any firearm in his possession
[3]
.
2.
The
appeal before this court is against conviction and sentence, such
appeal being automatic in terms of
section 309(1)(a)
of the
Criminal
Procedure Act 51 of 1977
by virtue of the imposition of the sentence
of life imprisonment.
3.
The
appellant was legally represented throughout the proceedings. He
pleaded not guilty to the single charge. The state called three
witnesses to testify. The appellant was the only witness for the
defence.
4.
The
complainant was a 14-year-old girl at the time of the complaint. She
lived in a single roomed dwelling with her mother and siblings
together with the accused. She testified that on the evening of 26
April 2016 she had gone to sleep. The home was divided at night
by a
curtain with her mother and the accused, together with the baby
sleeping on a bed on the one side and she and her younger
brother on
a mattress on the other. The home does not have running water or
ablutions inside and so for that purpose a bucket was
set on each
side of the curtain for use by the persons sleeping on that side.
5.
During
the night she was awoken by the feeling of the accused penetrating
her and when she woke up, he was on top of her and the
tights and
panties in which she had gone to sleep pulled down. She attempted to
scream, and the accused put his hand on her mouth.
She subsequently
managed to scream, and her mother woke up.
6.
When
her mother got up, she switched on the light and found the appellant
standing over the complainant. He was wearing only a t
shirt and was
naked from the waist down. The complainant was lying on the mattress
with her tights and panties pulled down.
7.
She
told her mother what the accused had done. He threatened them with a
hammer if they did not keep quiet. Her mother had then
assisted her
up and taken her to a neighbor where they had been advised to call
the police. The police were called and by the time
they arrived the
accused had fled. The complainants mother also testified and
corroborated her evidence in every material respect.
8.
The
appellant testified that he had awoken during the evening and had
gone to the other side of the curtain as he wanted to use
the
ablution bucket. His evidence was that he had had to do so as there
was only one bucket for use by all the occupants of the
home. He
testified that he was indeed wearing only a t shirt and was naked
from the waist down but that he had had intercourse
earlier with the
complainants’ mother and since it was dark, did not think
anything of going to the other side of the curtain
in that state of
undress.
9.
He
was adamant that there was only 1 bucket available for ablutions and
that it was on the other side of the curtain. His evidence
was that
on the evening in question he had and stumbled into the complainant
in the dark and that this is the reason for her crying
out. After the
complainant and her mother had gone out and he heard a whistle
blowing he fled out of fear for what the local community
might do to
him. His evidence was that he had a good relationship with everyone
in the home.
10.
Besides
the complainant, her mother and the appellant testifying, the state
had also called a medical practitioner to testify about
the
subsequent examination of the complainant. This evidence did not take
the matter any further.
11.
In
the judgment of the
court
a quo
the
evidence tendered by the respective parties was analyzed as a whole
and the court had no hesitation in accepting the evidence
of the
state over that of the appellant. Significantly, notwithstanding the
appellant’s evidence regarding the number of
ablution buckets,
the fact that the complainant was in the state of undress that she
was while the accused stood over her, was
not placed in dispute.
12.
The
evidence of the complainant and her mother was correctly accepted.
There was no evidence by the appellant to explain why the
complainant
and her mother in particular would have testified that he behaved as
he had when on his version neither had any reason
to harbor any ill
will towards him.
AD
CONVICTION
13.
In
my view, there can be no doubt that the appellant, committed the
offence with which he was charged.
14.
There
is in the circumstances, no reason to interfere with the factual
findings of the court
a
quo
in respect of the conviction on count 1.
AD
SENTENCE
15.
The
appellant was convicted, on Count 1 of a crime referred to in
Part 1
of Schedule 2 of The
Criminal Law Amendment Act 105 of 1997
and the
court a quo was obliged to impose the prescribed minimum sentence of
life imprisonment in terms of
Section 51(1)(a)
of that Act, absent
substantial and compelling circumstances. See S v Malgas
[4]
.
16.
The
court a quo explained to the appellant
[5]
before he pleaded that the minimum sentence should he be convicted
was life imprisonment and he confirmed he understood this.
17.
Consideration
must be had to whether the prescribed minimum life sentence was
appropriate or whether there were substantial and
compelling
circumstances to impose a lesser sentence.
18.
No
evidence was led in mitigation of sentence, the parties electing to
rely on a victim impact statement on the part of the state
in support
of the imposition of the minimum sentence and the appellant on a
pre-sentence report in support of the imposition of
a lesser
sentence.
19.
The
appellant is a 38-year-old male. He has a grade 10 education, is
unmarried and unemployed. He has 2 children of his own, both
girls
with different women. The probation officer reported that the
appellant does not accept responsibility for the offence of
which he
was convicted and shows no remorse. The victim impact report sets out
the extent to which the victim has been traumatized
and affected by
the rape, the consequences of which she will have to bear in the
years to come.
20.
The
trial court did not overemphasize the interests of the community and
was not dismissive of the personal circumstances of the
appellant.
The prevalence of this type of crime and the seriousness with which
it is viewed are the very reason for the imposition
of minimum
sentences.
There
are in the present case no substantial and compelling reasons
[6]
for the court to have departed from the minimum sentence in respect
of count 1.
21.
In
the circumstances, I propose the following order:
21.1
The
appeal against the conviction on count 1 is dismissed.
21.2
The
appeal against sentence on count 1 is dismissed.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
I
AGREE AND IT IS SO
ORDERED
J MAUMELA
JUDGE
OF THE HIGH COURT
HEARD
ON:
12 MARCH 2019
JUDGMENT DELIVERED
ON:
12
MARCH 2019
COUNSEL FOR THE APPELLANT:
ADV RH MABAPA
INSTRUCTED
BY:
LEGAL AID SA
PRETORIA JUSTICE CENTRE
COUNSEL FOR THE RESPONDENT:
ADV MJ NETHONONDA
INSTRUCTED
BY:
THE STATE ATTORNEY
[1]
60
of 2000
[2]
In
terms of
section 103(1)
[3]
In
terms of
section 103(4)
[4]
2001
(1) SACR 469
(SCA) at paragraph 8
[5]
Mpontshane
v S [2016] 4 All SA 145 (KZP)
[6]
S
v Salzwedel & Others
2000 (1) ALL SA 229
(AD) at 232I