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[2019] ZAFSHC 193
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M N v S (A33/2019) [2019] ZAFSHC 193 (15 August 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A33/2019
In
the matter between:
M
N
and
THE
STATE
CORAM:
OPPERMAN,
J
et
MOENG, AJ
JUDGMENT
BY:
MOENG, AJ
HEARD
ON:
29
JULY 2019
DELIVERED
ON:
15 AUGUST 2019
[1]
On 27 July 2018 the appellant was convicted in the Regional Court
Bultfontein on two separate counts of Rape in contravention
of the
provisions 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)
of the
Criminal Law Amendment Act 105 of 1997
.
[2]
Having concluded that substantial and compelling circumstances were
present to deviate from the prescribed minimum sentences
of life
imprisonment, the trial court sentenced the appellant to 15 years
imprisonment in respect of count 1 and 20 years imprisonment
in
respect of count 4. The sentences were not ordered to run
concurrently. An effective term of 35 years imprisonment was
therefore
imposed. It is with the leave of the court
a quo
that the appellant is now before us on appeal of his sentence.
[3]
The evidence upon which the conviction in respect of count 1 rested
was that on the 1
st
of January 2015 at around 1:30 a.m.
the complainant, NN, a 15 year old girl at the time, was on her way
home accompanied by her
friends when they came across an unknown man.
The unknown man produced a knife and they ran off. He gave chase and
caught up with
her. He placed a knife against her neck and ordered
her not to scream. He dragged her to a nearby bush where he raped
her. She
could not identify him at that stage but the appellant was
later linked to the rape by DNA evidence.
[4]
The evidence in respect of count 4 was that on 1 February 2015, the
complainant, JM, a 31 year old female, and her friend, DV
were from a
tavern. They came across a group of around 10 men who accosted them.
The men were in possession of knives. They attempted
to take flight
but the men grabbed both of them. She landed on the ground whilst DV
was a few meters away from her. The men thereafter
took turns in
raping both of them. She reckons that 7 men raped her. One of
the men stepped on her face with his foot and
held a knife against
her throat to prevent her from screaming. She could not identify any
of her assailants but the appellant was
positively connected to the
rape by DNA evidence.
[5]
The appellant contended in his notice of appeal that the court
a
quo
correctly found substantial and compelling circumstances in
respect of count 1 and that a term of 15 years imprisonment is
appropriate
under the circumstances. Ms. Kruger appearing for the
appellant, relying on
Alex Dikeledi Mahlase and The State
(255/2013)
[2011] ZASCA 191
(29 May 2013) at paragraph 9, contended
in the main that the rape in count 4 does not fall within the purview
of
section 51(1)
but that of
section 51(2)
Part III
of Schedule 2 of
the
Criminal Law Amendment Act.
[6
]
She argued that the prescribed sentence in count 4 was therefore 10
years imprisonment and not life imprisonment as the trial
court
concluded. She however conceded that we may not deviate from the
sentence prescribed by
section 51(2)(b)(i)
based on the nature and
seriousness of the offence. She further asserted that the court
a
quo
erred in not ordering the sentences to run concurrently.
Adv. Strauss, counsel for the respondent did not support the
sentences
imposed by the trial court.
[7]
Section 51(1)
read
with
Part I
of Schedule 2 prescribes a minimum sentence of life
imprisonment where the victim was raped by more than one person,
where such
persons acted in the execution or furtherance of a common
purpose or conspiracy. The trial court can in my view not be
criticised
for having concluded that the complainant in respect of
count 4 was raped by more than one person and that the perpetrators
were
acting in the furtherance of a common purpose. Her approach that
such common purpose triggered the provisions of
section 51(1)
read
with
Part I
of Schedule 2 has however been held to be incorrect in
the
Mahlase
matter.
[8]
The jurisdictional facts that the prosecution has to prove before the
provisions of
section 51(1)
read with
Part I
of Schedule 2 are
triggered, are that the victim should have been raped by more than
one person, where such persons acted in the
execution or furtherance
of a common purpose or conspiracy.
[9] As was stated in
S
v Legoa
2003 (1) SACR 13
(SCA) at 20E, the wording of the section
clearly indicates that for the minimum sentencing jurisdiction to
exist in respect of
an offence, the accused's conviction must
encompass all the elements of the offence set out in the Schedule.
The court emphasised
that the jurisdiction to impose the enhanced
sentences is acquired only if all the elements of the offence, as
described, are proved
before conviction and the trial court finds
them to be present. A further jurisdictional fact, that all the
co-perpetrators should
have been before court and convicted, appears
to have therefore been introduced by
Mahlase
.
[10]
The practical implication of
Mahlase
is therefore that even if
the trial court finds that the complainant was raped by more than one
person, it must, for purposes of
section 51(1)
read with
Part I
of
Schedule 2, disregard that finding because the co-perpetrators were
not before court or convicted. The anomaly will be that
even if it
was proven that the complainant was raped by more than one person the
court will proceed to sentence the accused on
the basis that it was
not so proven.
[11]
We are bound by
Mahlase
and it therefore follows that the
trial court erred in finding that the provisions of
section 51(1)
read with
Part I
of Schedule 2 were applicable. Life imprisonment was
therefore not competent and the sentence thus falls under the ambit
of
section 51(2)
(b)
Part III of Schedule 2. The
appellant was a first offender and the prescribed sentence is
therefore imprisonment for a period not
less than 10 years unless
substantial and compelling circumstances are present.
[12]
Section 51(2)
provides that the minimum term of imprisonment
that a regional court may impose may be increased, provided that the
maximum term
of imprisonment does not exceed the minimum term by more
than five years. Ms. Kruger contended in her heads of argument and
readily
conceded during the deliberations that such upward escalation
would be proper having regard to the nature and seriousness of count
4. She in essence conceded that there were no substantial and
compelling circumstances warranting a lesser sentence. Her argument
cannot be faulted.
[13]
The appellant was 21 years old at the time of the commission of the
offence and was 24 years old at the time of sentencing.
He was in
custody for approximately 2 years and 4 months awaiting trial and he
was a first offender. He is single and has a 5 year
old daughter who
is in the care of her biological mother. His highest scholastic
standard passed is Grade 8 and he left school
due to financial
constraints. He was unemployed and did odd jobs.
[14]
Despite the anomalous position created by Mahlase, we cannot lose
sight of the fact that the complainant was subjected to a
humiliating
and terrifying ordeal of a gang rape. A group of around ten men, the
appellant having been one of them, accosted the
complainant and DV.
The men were in possession of knives and took turns in raping both of
them. She reckons that 7 men raped
her. One of the men stepped
on her face and held a knife against her throat to prevent her from
screaming.
[15]
She could not recognise any of her assailants. Had it not been for
the DNA evidence, the appellant would not have been positively
identified. The appellant had committed a similar offence within a
month of the latter offence. The regional magistrate correctly
took
the emotional impact that this offence had on the complainant and the
palpable emotional state that she suffered from when
she testified,
three years after the ordeal.
[16]
We are of the view that no substantial and compelling circumstances
are present for us to deviate from the minimum sentence
of 10 years
imprisonment in respect of count 4. Having had regard to the nature
and seriousness of this count, we are satisfied
that it would be just
to increase the applicable minimum sentence by 5 years to 15 years
imprisonment.
[17]
The appellant conceded in the notice of appeal that a term of 15
years imprisonment for count 1 is justified. We are satisfied
that
the regional magistrate cannot be faulted for having sentenced him as
such. The appellant would therefore have to serve
an effective
term of 30 years imprisonment. We have a duty to take the cumulative
effect of the two sentences into account. We
are therefore of the
view that an effective term of 30 years imprisonment will be
unjustifiably severe under the circumstances.
We will therefore order
that part of the sentences run concurrent.
[18]
In the result I propose to make the following order:
1. The sentence of 15
years imprisonment in count 1 stands;
2. The sentence of 20
years imprisonment in count 4 is set aside and is substituted with a
sentence of 15 years imprisonment;
3. 5 years imprisonment
of the sentence imposed on count 1 is to run concurrent with the
sentence imposed in count 4;
4. The sentences are
antedated to 27 July 2018.
_________________
L.B.J. MOENG, AJ
I
concur and it is so ordered.
_________________
M.
OPPERMAN, J
On
behalf of the appellant: Attorney S. Kruger
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. M. Strauss
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN