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[2019] ZAFSHC 202
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Motsoahole v S (A98/2019) [2019] ZAFSHC 202 (31 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A98/2019
In
the appeal between:-
TEBOHO
ISAAC MOTSOAHOLE
Appellant
and
THE
STATE
Respondent
CORAM
:
MOLITSOANE,
J
et
MURRAY, AJ
JUDGMENT
BY
: MOLITSOANE,
J
HEARD
ON
:
21 OCTOBER
2019
DELIVERED
ON
:
31 OCTOBER 2019
[1]
The appellant was arraigned in the Regional Court: Kroonstad on three
counts of contravention
of s3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 32 of 2007( rape), read with the
provisions of s51(1)
of the Criminal Law Amendment Act,105 of 1997
(the Act) . He initially pleaded not guilty on all three counts and
during the ensuing
trial he made certain admissions in terms of s220
of the Criminal Procedure Act (the CPA) which prompted the state to
close its
case. He also closed his case without leading evidence. He
was subsequently convicted and sentenced to three life imprisonment
terms. This appeal is directed at the sentences only and to this end
he exercised his automatic right of appeal.
[2]
The facts surrounding these three counts of rape are essentially
similar. At the time of
the commission of these offences the
complainant was fourteen years old. She was staying with the
appellant and her aunt who is
the appellant’s wife. They also
stayed with three young children of the appellant. The appellant
slept in the kitchen during
the night while the appellant and his
wife slept in the bedroom. The incidents of rape took place over two
days and at that time
the appellant slept alone on the floor in the
kitchen while the children and her aunt were asleep on a bed in the
bedroom.
[3]
One night on a Sunday, in February 2015, while the complainant was
asleep the appellant came into
her blankets. He closed her mouth. He
took off her panties and inserted his penis into her vagina and
thereby had sexual intercourse
with her without her consent. The
following day on a Monday he again came into her bed in a similar
manner and had his way with
her in a similar fashion. He repeated
this ordeal again on the same Monday. The complainant testified that
she did not report any
of the incidents to her aunt as she believed
that she (the aunt) would not believe her.
[4]
The appellant as alluded above made the following similar admissions
in respect of each
of the counts of rape
, to wit
, that during
February 2015 and at Snake Park, Kroonstad, he had an act of sexual
penetration with MN, a fourteen year old girl
without her consent.
Those admissions were recorded in terms of s220 of the CPA.
[5]
The grounds on which the appellant relies are briefly set out as
follows:
1.
An effective sentence of life imprisonment is strikingly
inappropriate in that it
is out of proportion to the totality of the accepted facts in
mitigation;
2.
The Court a quo erred by finding that there were no substantial and
compelling circumstances to deviate
from the prescribed minimum
sentence, more particularly in view of the following factors;
a) The absence of
planning;
b)
The age and
personal circumstances of the appellant;
c)
The Court
did not take into consideration the time the appellant spent in
custody awaiting the finalisation of the trial;
d)
The fact
that the appellant did not have any previous convictions of a sexual
nature.
3. The
Court
a quo
further erred in over-emphasising the following
factors:
a)
The
seriousness of the offence;
b)
The
interest of the society;
c)
The
prevalence of the offence;
d)
The
deterrent effect of the sentence;
e)
The
retributive element of sentencing.
[6]
It is trite that sentencing is pre-eminently a matter for the
discretion of the trial court.
A court sitting on appeal may only
interfere with a sentence imposed where the trial court misdirected
itself or where the sentence
imposed is shockingly inappropriate- See
S v
Malgas
[1]
.
In exercising its judicial discretion the court must be guided by the
established and valid principles governing sentencing which
espouse a proper consideration and balancing of the well-known triad
consisting of the personal circumstances of the accused, the
seriousness of the offence and societal interest
[2]
.
[7]
It is undisputed that the appellant was convicted of charges of rape
for which life imprisonment
is prescribed as a minimum sentence. The
court is obliged to impose a minimum sentence unless it finds that
there are substantial
and compelling circumstances warranting it to
deviate from imposing such a sentence as envisaged in s51(3)(a) of
the Act. It is
settled that minimum sentences are ordained by
legislation and cannot be departed from lightly and for flimsy
reasons- See
Malgas
(
supra
)
and
S v
Dodo
[3]
.
[8]
The court
a quo
did not find that substantial and compelling
circumstances existed which warranted that court to impose a lesser
sentence. On appeal
against a minimum sentence in terms of the Act,
it is incumbent on us to enquire whether the facts which were
considered by the
sentencing court, taken cumulatively, were
substantial and compelling or not.
[9]
The appellant did not testify in mitigation of sentence and the
following personal circumstances
were placed on record from the bar:
That the appellant was thirty two years old and married with three
children aged nine, six
and ten months old. He was employed as a
painter and plasterer but his earnings were not disclosed. He was a
first offender.
[10]
It is submitted in the heads of argument that the fact that the
appellant was a first offender, was
in custody for several months
whilst awaiting trial and had rehabilitative prospects should have
served as substantial and compelling
for the court to deviate from
imposing life imprisonment.
[11]
It is indeed so that the accused was a first offender and had a clean
record. There is, however, no
principle in our law which entitles
first offenders to shorter imprisonment where life imprisonment is
prescribed. In
S
v Kekana
[4]
the following was said:
“
It is
true that the appellant has an unblemished record and that he was a
useful member of society in gainful employment at the
relevant time.
Those circumstances, however, have to be weighed against the nature
and severity of the offence and the requirements
of society.
Notwithstanding those mitigating factors being present, the
seriousness of the offence makes it necessary to send out
a clear
message that behaviour of the kind encountered in this case cannot be
countenanced. The natural indignation that the community
would feel
at conduct of this kind warrants recognition in the determination of
an appropriate sentence.”
[12]
In my view the fact that the appellant is a first offender should
recede to the back in view of the nature,
gravity and how these
offences were committed. Like all other personal circumstances once
it becomes clear that the crime is deserving
of a substantial period
of imprisonment those circumstances would largely be immaterial to
what period it should be
[5]
.
[13]
It is further submitted that the court failed to take into account
the period the appellant spent while
awaiting trial. When one peruses
the record of the proceedings, it appears that the appellant was
arrested on the 19
th
April 2015 on these charges. The
charge sheet further reveals that the appellant was not kept in
custody. What is not clear is
when he was released following the
arrest. Having been released, he failed to appear before court on the
19
th
May 2015. A warrant for his arrest was authorised.
He was apprehended later and brought before court on the 29
th
May 2019. Upon his appearance in court he was convicted for failure
to appear before court and was sentenced accordingly. The court
also
ordered that he be kept in custody. He spent about a year in custody
awaiting finalisation of his trial.
[14]
The appellant thus played a part in the fact that he had to endure
the incarceration while awaiting finalisation
of his trial. I am
mindful that he is also not to be solely blamed for the delay in
finalisation of his trial. The court
a quo
also indicated in
its judgment on sentence that the appellant appeared twelve times in
the Regional Court before his matter could
be finalised.
[15]
The period an accused spent in custody is but one of the factors the
court takes into account in determining
whether the effective period
of imprisonment to be imposed is justified or whether it is
proportionate to the crime committed-
(See
S
v Radebe and Another
[6]
).
[16]
An averment is made that the appellant has prospects of
rehabilitation and it appears to me that a submission
is made that
the court
a
quo
failed to consider that aspect. Save to aver that the appellant was
thirty two years old no averments are made to indicate the
maturity
or otherwise of the appellant. The appellant is not a youthful person
but a married man with three children.
In
S
v
Mhlakaza
and Another
[7]
the court pointed out that rehabilitation becomes less important when
the seriousness of the crime demands a long term of imprisonment.
[17]
The personal circumstances of the appellant must be mirrored against
the aggravating circumstances
of this case. The complainant was 14
years of age at the time of these incidents. She stayed in the house
with the appellant. She
was family of the appellant and appellant was
expected to nurture and protect her and not to harm her. The
incidences of child
rape are a national scourge that shames us as a
nation
[8]
. While the complainant
was not the biological daughter of the appellant, she stayed in his
house and most likely looked up to him
as a father or at the most
appellant represented a father figure in her life.
[18]
It is apt to liberally refer to
S
v Abrahams
[9]
where Cameron JA (as he then was) dealt with the rape in a family of
a daughter by her father and said:
“
[17] Of all the grievous
violations of the family bond the case manifests, this is the most
complex, since a parent, including a
father, is indeed in a position
of authority and command over a daughter. But it is a position to be
exercised with reverence in
the daughter’s best interest, and
for her flowering as a human being. For a father to abuse the
position to obtain forced
sexual access to his daughter’s body,
constitutes deflowering in the most grievous and brutal sense.”
[19]
The mother of the complainant had passed on and that is why she came
to stay with her aunt. She was
vulnerable and helpless. What is most
disconcerting is that she was raped in the same house where her aunt
and her children were
present and asleep. The appellant raped her
three times on two consecutive days. It is clear to me that the
appellant has little
or no regard for women. It is for this reason
that he would venture to rape such a little child while his wife was
present in the
house.
[20]
The victim impact report sets out in detail the extent of the
emotional and psychological effect this
ordeal had on the
complainant. She has become very shy. She no longer interacts with
her friends like in the past. She has indicated
that her performance
had dropped at school. She indicated that every time when the case
was to appear before court she became scared.
These rapes have in
most probability left very serious emotional scars on the
complainant. Having regard to the mitigating circumstances
and the
aggravating circumstances I am not convinced that the court
a quo
misdirected itself in finding that there were no substantial and
compelling circumstances to warrant deviation from the applicable
minimum sentence. I accordingly make the following order:
ORDER
1.
The appeal
against the sentences is dismissed.
2.
The
sentences are confirmed.
3.
The order
in terms of
s103
(1) of the
Firearms Control Act 60 of 2000
is
confirmed.
PE
MOLITSOANE, J
I
agree
H
MURRAY, AJ
For
the Appellant:
Adv S Kruger
Instructed
by:
Legal Aid South Africa
BLOEMFONTEIN
For
the Respondent:
Adv Bontes
Instructed
by:
Deputy Director of Public Prosecutions
BLOEMFONTEIN
[1]
2001(1) SACR (SCA) at par [12]
[2]
Bailey v The State ( 454/11)[2012] ZASCA 154 ( 01 October 2012) at
par [19]
[3]
2001(3) SA 382(CC)
[4]
2013(1) SACR 101(SCA) at page 105 par [11]
[5]
Vilakasi v The State (576/07) [2008] ZASCA 87(2 September 2008)
[6]
(726/12)[2013] ZASCA 31(27 March 2013) par [13]
[7]
1997(1) SACR 515(SCA) at 519 h-i
[8]
MDT v S (548/2013)[2014] ZASCA 15( 20 March 2014)
[9]
2002(1) SACR 116