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[2019] ZAGPPHC 506
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S v Mothapo (CC44/2019) [2019] ZAGPPHC 506 (1 August 2019)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: CC44/2019
1/8/2019
In
the matter between:
THE
STATE
V/S
TAU
DANIEL
MOTHAPO
ACCUSED
SENTENCE
PHAHLANE,
AJ
[1]
The task of imposing a sentence in a criminal trial is not an easy
one. As a point
of departure, the court has to have regard to the
three interconnected factors, which are sometimes referred to as the
triad relevant
to an appropriate punishment. This means that in
considering an appropriate sentence, this court should be mindful of
the so-called
"triad" factors pertaining to sentence as
enunciated in
S v Zinn
1969 (2) SA 537
(A)
namely: 'the
crime, the offender and the interests of society'.
[2]
Having said this, the sentence to be imposed should be blended with
an element of
mercy. At the same time, sentencing the accused must
also be directed at addressing the judicial purposes of punishment,
which
are deterrence; prevention; retribution and rehabilitation as
stated in the case of
S v Rabie
1975 (4) SA
855
(A).
[3]
In
S v Swart
2004 (2) SACR 370
(SCA)
NUGENT JA had the
following to say:
"in our law, retribution and
deterrence are proper purposes
of
punishment and they must be accorded
due weight in any sentence that is imposed. Each of the elements
of
punishment is not required to be
accorded equal weight, but instead proper weight must be accorded to
each according to the circumstances.
Serious
crimes
will usually require
that
retribution and
deterrence
should
come
to the fore
and that the
rehabilitation
of
the offender will consequently
play a relatively smaller role".
[4]
This court referred to, and with
approval, the case of
R v Karg
1961 (1) SA 231
(A)
at 236A-B
where the court held that:
"while the deterrent effect of
punishment has remained as important as ever, it is correct to say
that the retributive aspect
has tended to yield ground to the aspect
of prevention and correction. That is
no
doubt
a
good thing. But the element of
retribution, historically important, is by no means absent from the
modem approach. Is it not wrong
that the natural indignation of
interested persons and of the community at large should receive some
recognition in the sentences
that courts impose,
and
it is not irrelevant to bear in mind that if sentences for serious
crimes are too lenient, the administration
of
justice may fall into
disrepute and injured persons may incline to take the law into their
own hands".
[5]
It is on this basis that Advocate Fourie
on behalf of the State submitted that Retribution should carry more
weight because of the
seriousness of the offences which the accused
have been convicted of - when the court considers the aspects
relating to the purpose
of punishment.
[6]
I agree with his submissions because
that is exactly what the Supreme Court of Appeal said in the case of
S v Swart
(supra)
[7]
The offences for which the accused has
been convicted for are very serious. Mr Mothapo, it seems that
wielding a knife at a vulnerable/defenceless
woman and robbing her of
her lawful possessions was not enough for you. You went ahead and
stripped off the complainant of her
dignity and sexually violated
her.
[8]
The complainant who is a Lesotho
citizen, came into the country - and it was only after 5 days of
working for Mrs Molope, as a domestic
worker, that the accused went
to attack her. She testified that she was doing laundry (hanging the
washing) when the accused came
and threatened her with a knife and
demanded the items which are stated in count 1 of the indictment. The
accused thereafter raped
her. Under cross-examination, when she was
asked about the mood of the accused when talking to her, she said the
accused was violent
and pointing her with a knife, but that the knife
did not touch her. The complainant testified that she sustained
injuries in her
genital area.
[9]
Her injuries are confirmed by the J88
which the accused and his counsel admitted and it was marked exhibit
C. The doctor who examined
her noted that there are abrasions and
small tears on the
Fossa Navicularis
which are indictive of blunt
penetrative trauma.
[10]
In your evidence Mr Mothopa, you also confirmed raping the
complainant and you told the court
that you don't know why you raped
her - you just found yourself raping her.
[11]
What is disturbing in the evidence of the complainant is that she
told the court that two days
after the incident, she decided to go
back home to Lesotho. The effect of which meant that she lost her
employment because of the
actions of the accused. She said that she
has not found work since. She said she is afraid to stay alone and
she gets more scared
when someone opens the door without knocking.
[12]
The traumatic experience of the rape incident stayed with her for a
while because she told the
court that her relationship with her
boyfriend was affected in that her boyfriend would constantly remind
her of the rape. The
pain was still visible in her eyes. I say this
because the court also observed her as she was testifying. Her eyes
were red as
if she was crying and she looked scared. The court even
had to ask her if she was okay and that she looked scared. She told
the
court that she went for counselling but she is not coping.
[13] It is the
duty of the courts to protect the society from the scourge of these
violent actions,
and to send a clear message that this behaviour is
unacceptable.
[14] Rape is a
repulsive crime. The court in the case of
S v Chapman
called
it a
"humiliating, degrading and brutal invasion of the
privacy, dignity and the person of the victim.
This court held
that:
the courts are under
a
duty to send
a
clear
message to the accused, to other potential rapists and to the
community. That the court must protect the equality, dignity
and
freedom of all women".
[15]
Turning to the issue of the minimum sentences, it is important to
note that because of these
serious and violent crimes, Parliament saw
it fit to step in and address the problem, hence the Legislature
passed the
Criminal Law Amendment Act 105 of 1997
. This Act was
intended to prescribe a variety of mandatory minimum sentences to be
imposed by our courts in respect of a wide range
of serious and
violent crimes. In your case Mr Mothapo the relevant section is
section 51(2) which has been explained to you at
the begging of the
trial. In terms of Part II schedule 2 the offences referred to
include aggravated robbery under section 51(2)
where the sentence is
15 years imprisonment for a first offender; 20 years for a second
offender and 25 years for repeated offender.
Where the offence is of
rape read with section 51(2) of the Act and Part Ill of Schedule 2,
the conviction carries a penalty of
10 years imprisonment for a first
offender; 15 years for a second offender and 20 years for a repeated
offender.
[16]
Advocate Sano on behalf of the accused submitted, and rightly so,
that the accused have been
convicted of serious offences which are
prevalent in the whole country. The accused said he ask for
forgiveness from the court,
the people he violated and from the
complainant. Advocate Sano argued that having pleaded guilty and
asking for forgiveness is
an indication of genuine remorse and
appreciation of your actions Mr Mothapo. She also pleaded with the
court to have mercy on
you and that the court should find in your
favour - that there are substantial and compelling circumstances that
justifies this
court to depart from imposing the prescribed minimum
sentence.
[17]
The State on the other hand submitted
that a guilty plea cannot work to benefit the accused and that the
court should be mindful
of the purpose of punishment.
[18]
This court is enjoined with the powers
to depart from imposing the prescribed minimum sentence where
substantial and compelling
circumstances exist. However, the
specified sentences are not to be departed from lightly, and for
flimsy reasons as stated in
S
v
Ma/gas
2001 (1) SACR 469
(SCA).
[19]
The general principles governing the
imposition of a sentence in terms of the Minimum Sentences Act as
enunciated by the Supreme
Court of Appeal in
Malgas
(supra)
cannot
be ignored.
MARAIS
JA
held that:
"The Legislature has however
deliberately left it to the courts to decide whether the
circumstances of any particular case
call for
a
departure from the prescribed
sentence. While emphasis has shifted to the objective gravity of the
type of crime and the need for
effective sanctions against it, this
does not mean that all other considerations are to be ignored.".
And
"The ultimate impact of all the
circumstances relevant to sentencing must be measured against the
composite yardstick (substantial
and compelling) and must be such as
cumulatively justify
a
departure
from the standardised response that the legislature has ordained.
And
"If the sentencing court an
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose
a
lesser sentence".
[20]
S v Matyityi
2011 (1) SACR 40
SCA,
referring to
Malgas
supra
reaffirmed
that:
"the starting point for
a
court that is required to impose
a
sentence in terms of Act 105
of
1997 is not a clean slate
on
which the court is free
to
inscribe whatever sentence it deems
appropriate, but the sentence that is prescribed for the specified
crime in the legislation".
[21]
The decision whether the circumstances
of this case call for the imposition of a lesser sentence than the
prescribed minimum sentence,
means the mitigating factors would have
to be weighed with the aggravating factors
[22]
S v Sikhipha
2006 (2) SACR 439
(SCA) at para 16
where the court
held that:
"in deciding whether the particular
circumstances of
a
case
called for the imposition
of a
lesser sentence than the prescribed
minimum sentence ordained by the legislature, the traditional
mitigating factors would have
to
be
weighed with the aggravating factors.
[23]
The personal circumstances of the
accused placed on record are as follow:
1.
That
he was born on the 28 February 1991 - meaning that he is 28 years old
2.
Stays
in Olivenhutbosch with his parents and his sibling
3.
The
highest standard he has passed is Grade 10. The accused informed the
court that he could not proceed with his education because
his
parents had problems and had to divorce.
4.
The
accused is not married but has one child who is 1 year and 7 months
old. The mother of the child is not working
5.
The
accused said he has never worked in his life before.
[24]
What works against you Mr Mothapo is
that you are not a first offender. Your record, which you have
admitted shows that you have
one previous conviction of Robbery -
where you were convicted in January 2012 and sentenced to 9 years
imprisonment. You told the
court that you served only 4 years and 6
months and you were released in 2016. You also confirmed that when
you committed these
offences (for which this court has convicted you
for-, you were on parole which is supposed to lapse/end in 2020.
[25]
The accused was asked under
cross-examination why he committed the offences and he responded by
saying it was because of the circumstance
at his home which led him
to commit these offences. When asked about the reason why he
committed the rape, the interpretation given
to the court at first
was couched in the manner which says - 'I did not have the intention
to do it'. However, a proper interpretation
was given when the
accused explained that - 'he does not know why he raped the
complainant, he just found himself doing it'. Fortunately,
the court
has the benefit of fully understanding the language spoken by the
accused and the proper interpretation as given to the
court was that
'he does not know why he raped the complainant' (not that he did not
have the intention)
[26]
The State submitted that the time served
by the accused in prison for his previous conviction did not have any
effect on him and
thus meaning, he was not rehabilitated.
[27]
I am inclined to agree with the State,
because not only did the accused commit a degrading, humiliating act
and a violation on the
person of the complainant by raping her at a
place where she was supposed to have been safe, but he is also a
danger to the society.
There is no justification for the actions of
the accused and this court is duty bound to impose a sentence which
will send a clear
message and be a lesson to the accused that, when
you are given an opportunity of being released on parole, you are
given a second
chance to mend your ways.
[28]
In
S
v
Ro and Another
2010 (2) SACR 248
(SCA)
the
majority of the supreme court of appeal found that: "to
elevate
the personal circumstances
of
the
accused above that of society in general and the victims in
particular would not serve the well established aims
of
sentencing, including deterrence and
retribution".
[29]
I am bound by this finding. This court
has earlier indicated that, not only will it make a balance between
the interest of the accused
visa vis those of society as well as the
offence, but it will also look at the purposes of punishment.
[30]
Having considered all the circumstances
of the case and having heard arguments and submissions from both
parties, I am of the view
that the aggravating factors far outweigh
the mitigating factors and that there are no substantial and
compelling circumstances
which warrants a deviation from the
imposition of the prescribed minimum sentence.
In
the circumstance, the following sentence is imposed:
1.
Count 1
(Robbery)
= 20 years imprisonment
2.
Count 2
(Rape)=
10 years imprisonment
3.
In terms of
section 103
of The
Firearms
Control Act 60 of 2000
, the accused is declared unfit to possess a
firearm.
P. D PHAHLANE
Acting Judge of the High Court Gauteng,
Pretoria
Heard
on
: 29 July- 01 August 2019
For
the State
: Adv Fourie
: Adv Roos
Instructed
by
: Deputy Director of Public Prosecutions
For
the Defendant : Adv Sono
Instructed
by
: Legal Aid South Africa
Date
of Sentence : 01 August
2019