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[2018] ZAGPPHC 341
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Kgosana v S (A427/16) [2018] ZAGPPHC 341 (20 February 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
[GAUTENG DIVISION, PRETORIA]
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NUMBER: A427/16
20/2/2018
In
the application of:
MBOI
MISHACK
KGOSANA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
INTRODUCTION:
[1] The Appellant was
charged in the Regional Court held at Potchefstroom on the
following
charges:
[1.1]
AD COUNT 1:
Housebreaking with intent to steal and theft;
[1.2]
AD COUNT 2:
Contravention of section 5(2) of Act 32 of 2007, Sexual
Assault.
[2] Ad count 1 it was
alleged that the Appellant on/or about 3 April 2009, and at/or
near
[….] in the Regional Division of North West, unlawfully and
intentionally broke into the house of C M with the intention
to steal
and then unlawfully stole the following items to wit:
[2.1] 2 x Motorola cell phones;
[2.2] 1 x Motorola charger, the
property or in the lawful possession of C M.
[3] In count 2 it was
alleged that on 3 April 2009, and at/or near [….] in
the
Regional Division of North West, the said Appellant unlawfully and
intentionally inspired the belief in the complainant, to
wit C M that
the said complainant would be sexually violated by undressing all her
clothes and also his clothes, by putting a condom
on his penis and
then forcing her down on the bed.
[4] The Appellant was
duly convicted on 14 April 2010 on one (1) count of housebreaking
with the intent to steal and theft, and one (1) count of sexual
assault in contravention of section 5 of Act 32 of 2007 in the
Regional Court in Fochville.
[5] The Appellant was
sentenced to four (4) years imprisonment on count 1 and ten
(10)
years imprisonment on count 2. It was ordered that the sentence in
count 1 should run concurrently with the sentence in count
2.
[6] The record had to
be reconstructed. On appeal both counsel for the Appellant
and
Respondent concurred that the record was sufficiently reconstructed
and that it would be in the interest of justice to conclude
with this
matter with the available record of the proceedings.
See:
S v Schoombie
2017 JDR 0054 (CC)
[7] Leave to appeal
was granted on petition on 21 April 2016, on both conviction
and
sentence.
AD CONVICTION:
[8] The
evidence of the complainant C M was clear. She confirmed that on
4
April 2009 she was asleep in the house. She woke up and saw that
there was a person standing next to her bed. It was the Appellant
whom she later identified, who then grabbed her by the neck and
undressed her. He demanded a condom, unzipped his trousers and
put a
condom on his penis.
[9] The
complainant testified that she told the Appellant that she had such a
fright that
she needed to go to the bathroom. The Appellant indicated
that he was looking for a longer knife, because the one in his
possession
was too short. The complainant used the opportunity to
scream for help. The Appellant took her cell phone and charger and
fled
through the window. This property of the complainant was later
recovered from the Appellant.
[10] On appeal the Appellant’s
counsel conceded correctly that the conviction was in order. He
however
made submissions with regard to the appropriateness of the
ten (10) years term of imprisonment, which was imposed. It was argued
that the sentence of ten (10) years imposed on the charge of sexual
assault is shockingly harsh and inappropriate in the circumstances.
[11] Mr Van As argued that the
prescribed minimum sentence for the rape of an adult person is ten
(10) years
imprisonment in terms of section 51(2) of Act 105 of 1977
for a first offender.
[11] It followed, so he argues,
that because the Appellant was not convicted of rape but only
for
sexual assault, that the sentence appeared to be too severe,
particularly because sexual assault is not a concluded act of
rape.
He argued that
in casu
a term of ten (10) years imprisonment
for sexual assault is shockingly inappropriate.
[12] The Appellant's counsel also
argued that the Appellant was arrested on 6 April 2009, and
was not
released on bail until his conviction and sentence on 14 April 2010.
Accordingly the Appellant argues that although it
was not reflected
on the
J
15 record of the case that the Appellant spent one (1)
year in custody pending the outcome of his trial.
[13] It is argued that in line with the
decision of
S
v Vilakatzi
2012 (6) SA 353
SCA
that the period spent in custody should have taken a more
prominent emphasis in considering whether the term of ten (10) years
imprisonment
is appropriate. Mr Van As argued that because there is
no indication on record that the Court
a quo
considered this
fact that the Appellant spent one (1) year in custody as an
unsentenced detainee, that the Court on Appeal should
take it into
consideration for purposes of sentencing.
[14] The Appellant is not a first
offender. The Appellant was previously convicted for robbery
and
attempted rape on 5 December 2004, and sentenced to an effective term
of five (5) years imprisonment.
[15] I respectfully disagree with the
submissions on behalf of the Appellant. The aggravating factors
in my
view far outweigh the mitigating features of the Appellant's case.
The crimes committed by the Appellant are indeed very
serious. The
Appellant showed no remorse during the course of the proceedings.
[16] The fact that he had a previous
conviction for robbery as well as a previous conviction for rape
is
indicative of the person of the Appellant and that he would not
hesitate to resort to violence in committing these heinous crimes.
[17] The Appellant and the
complainant knew each other. The Appellant also knew that the
complainant
stayed alone.
[18] I respectfully concur with
the submissions raised on behalf of the Respondent that the
complainant was therefore an easy target for the Appellant. He did
not only invade the privacy of the complainant's house and harmed
her
sense of security, but also threatened her and clearly had the
intention to rape the complainant was it not for her quick thinking.
[19] It should also be considered that
the Appellant throttled the complainant on the way to the bathroom
when she told the Appellant that she wanted to use the bathroom
because of her fear.
[20] I respectfully concur with the
counsel for the Respondent that the Appellant can deem himself
lucky
with the imposed sentence. It is an accepted principle that the
seriousness of certain offences warrant that the sentencing
principles of retribution and deference should receive priority over
considerations of prevention and rehabilitation.
[21] I respectfully am of the view
that the Court a
quo
was clearly correct in sentencing the
Appellant to a lengthy term of imprisonment especially in the light
of the fact that he has
previous convictions of which violence is an
element.
[22] The powers of a Court of Appeal is
limited. A Court sitting as a Court of Appeal can only interfere
with
a sentence imposed by a lower Court if the Court on Appeal is
satisfied that the lower Court did not exercise its discretion
judicially.
[23] I have no reason to find that
the learned Regional Court Magistrate did not exercise his
sentencing
discretion judicially. The Court of Appeal may only interfere with a
Trial Court's decision when a Trial Court committed
a serious
misdirection, or if the sentence is so inappropriate that it could
not have been imposed by a reasonable Court.
See:
S v Boggarts
2013 (1) SACR 1
(CC) at para
41
S v Rabie
1975 (4)
SA 855
;
S
v Giamoulis
1975 (4) SA 867
(A);
S
v Pillay
1977 (4) SA 531
(A).
[24] In the light of the
above I would dismiss the appeal against both conviction and
sentence.
P PISTORIUS (ACTING JUDGE)
I
concur B. Wanless AJ